Proposal for a Council Decision approving the conclusion, by the Commission, of the Agreement for co-operation between the European Atomic Energy Community represented by the Commission and the Department of Energy of the United States of America in the field of fusion energy research and development
Date: 2000-12-13
Institutions: European Commission
Subjects: United States, cooperation agreement, nuclear energy, nuclear fusion, scientific cooperation

COMMISSION OF THE EUROPEAN COMMUNITIES

Brussels, 20.12.2000
COM(2000) 387 final /2

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et la page 3 du document
COM (2000) 387 final du
13.12.2000 (toutes langues)

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Proposal for a

COUNCIL DECISION

approving the conclusion, by the Commission, of the Agreement for co-operation
between the European Atomic Energy Community represented by the Commission and
the Department of Energy of the United States of America in the field of fusion energy
research and development

(presented by the Commission)

(1)

(2)

(3)

(4)

(5)

(6)

EXPLANATORY MEMORANDUM

the Commission to conduct negotiations on an Agreement

Directives for
(the
"Agreement") for co-operation between the European Atomic Energy Community
(EURATOM) represented by the Commission of the European Communities and the
Department of Energy of the United States of America (US DOE), (collectively
referred to as "the Parties"), in the field of fusion energy research and development
were adopted by the Council on 10 April 2000.

The directives were based on a draft Agreement, which was discussed and approved at
the level of the Joint Working Party on research and Atomic Questions prior to the
adoption of the mandate as a point A Decision by the Council. No change has been
made to this draft Agreement during the negotiations.

The Consultative Committee for the Euratom specific programme on nuclear energy
(CCE-FU) has supported the intention to conclude such an
research (Fusion)
Agreement.

As far as the EAEC is concerned, the forms of co-operation which the Agreement
would allow are:

(a)

(b)

(c)

technically compatible with the scientific and technological objectives relevant
to thermonuclear fusion as laid down in the Council Decision of 22 December
1998 concerning the Fifth Framework Programme of the EAEC for research
and training activities (1998-2002)1,

financially compatible with the financial reference amount for fusion in the
same Decision of 22 December 1998,

in agreement with the objectives and RT priorities in the key action for
controlled thermonuclear fusion as laid down in the Council Decision of 25
January 19992 adopting a research and training programme in the field of
nuclear energy (EURATOM) for the period 1998-2002.

The proposed Agreement will not have further financial consequences, including
administrative and human resource costs, for the Community budget than those
foreseen in the decisions above and in the relevant implementing decisions.

The Agreement will have to be concluded by the Commission in conformity with
article 101, second paragraph, of the Treaty establishing the EAEC.

In view of the above, the Commission requests the Council to adopt, in application of
the second paragraph of article 101 of the Treaty establishing the EAEC, the annexed
proposal for a Council Decision approving the conclusion, by the Commission, of an
Agreement for co-operation between the European Atomic Energy Community
represented by the Commission and the Department of Energy of the United States of
America in the field of fusion energy research and development.

1 OJ L 26, 1.2.1999 p.34.
2 OJ L 64, 25.1.1999, p. 142

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Proposal for a

COUNCIL DECISION

approving the conclusion, by the Commission, of the Agreement for co-operation between
the European Atomic Energy Community represented by the Commission and the
Department of Energy of the United States of America in the field of fusion energy
research and development

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Atomic Energy Community, and in
particular Article 101, second paragraph thereof,

Having regard to the proposal from the Commission,

Whereas:

(1)

(2)

The Agreement for co-operation in the peaceful uses of nuclear energy between the
European Atomic Energy Community and the United States of America, signed at
Brussels on 7 November 1995, and on 29 March 19963, provides for co-operation in
including research on controlled thermonuclear
nuclear research and development,
fusion,

The Commission has, in accordance with the Council Directives of 10 April 2000,
conducted negotiations on an Agreement for co-operation between the European Atomic
Energy Community represented by the Commission and the Department of Energy of the
United States of America in the field of fusion energy research and development,

(3)

The conclusion, by the Commission, of the Agreement should be approved,

3 OJ L 120, 20.05.1996 p 1

3

HAS DECIDED AS FOLLOWS:

Sole Article

The conclusion, by the Commission, for and on behalf of the Community, of the Agreement for
co-operation between the European Atomic Energy Community and the Department of Energy
of the United States of America in the field of fusion energy research and development, is hereby
approved.

The text of the Agreement is annexed to this decision.

Done at Brussels, […2000]

For the Council
The President

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AGREEMENT FOR COOPERATION
BETWEEN THE
EUROPEAN ATOMIC ENERGY COMMUNITY
REPRESENTED BY
THE COMMISSION OF THE EUROPEAN COMMUNITIES
AND THE
DEPARTMENT OF ENERGY OF THE UNITED STATES OF AMERICA
IN THE FIELD OF FUSION ENERGY RESEARCH AND DEVELOPMENT

The European Atomic Energy Community (EURATOM), represented by the Commission of the
European Communities, and the Department of Energy of the United States of America (DOE),
(hereinafter referred to collectively as "the Parties");

Whereas the Agreement for Cooperation in the Peaceful Uses of Nuclear Energy between the
European Atomic Energy Community and the United States of America, signed at Brussels
November 7, 1995, and March 29, 1996, provides for cooperation in the peaceful uses of nuclear
energy, including controlled thermonuclear fusion, and,
in particular, contributions towards
multilateral projects;

Desiring to continue the long history of valuable collaboration between the Parties and to
enhance the tradition of close and continuing cooperation in the field of fusion energy which has
in the Field of Controlled Thermonuclear Fusion (DOE-
occurred under the Agreement
EURATOM Agreement) signed at Brussels December 15, 1986; and in multilateral frameworks,
especially ITER; and

Desiring to continue to promote the development of
environmentally acceptable, economically competitive, and virtually limitless source of energy,

fusion energy as a potentially

HAVE AGREED AS FOLLOWS:

Article I
Objective

The objective of this Agreement is to continue and intensify cooperation between the Parties in
the areas covered by their respective fusion programs, on the basis of mutual benefit and overall
reciprocity,
in order to develop the scientific understanding and technological capability
underlying a fusion energy system.

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Article II
Areas of Cooperation

The areas of cooperation under this Agreement may include the following:

1.

2.

3.

4.

5.

6.

1.

tokamaks, including the large projects of the present generation and activities related to
those of the next generation;

alternative lines to tokamaks;

magnetic fusion energy technology;

plasma theory and applied plasma physics;

program policies and plans; and

other areas as mutually agreed in writing.

Article III
Forms of Cooperation

The forms of cooperation under this Agreement may include, but are not limited to, the
following:

a.

b.

c.

d.

e.

f.

g.

exchange and provision of information and data on scientific and technical
activities, developments, practices and results, and on program policies and plans,
including exchange of undisclosed information on the terms and conditions in
accordance with Articles VI and VII;

exchange of scientists, engineers and other specialists for agreed periods of time
in order to participate in experiments, analysis, design and other research and
development activities in accordance with Article VIII;

organization of seminars and other meetings to discuss and exchange information
on agreed topics in the areas listed in Article II, and to identify cooperative actions
which may be usefully undertaken in accordance with Article V;

(instruments and
exchange and provision of samples, materials, equipment
components) for experiments, testing and evaluation in accordance with Articles
IX and X;

execution of joint studies, projects or experiments including their joint design,
construction and operation;

establishment of data links; and

other specific forms of cooperation as mutually agreed in writing.

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2.

1.

2.

3.

4.

The Parties shall coordinate the activities, as appropriate, under this Agreement, with
other international fusion research and development activities, in order to minimize
duplication of effort. Nothing in this Agreement will be construed to prejudice existing
or future arrangements for cooperation between the Parties.

Article IV
Coordinating Committee and Executive Secretaries

The Parties will establish a Coordinating Committee to coordinate and supervise the
conduct of activities under this Agreement. The Coordinating Committee will consist of
up to twelve (12) members, half of whom will be appointed by each Party. The
Coordinating Committee will meet annually, alternately in the United States and in the
European Union, or at other agreed times and places. The Head of the Delegation of the
receiving Party will chair the meeting.

The Coordinating Committee will review the progress and plans of activities under this
Agreement, and propose, coordinate and approve future cooperative activities that are
within the scope of this Agreement with regard to technical merit and level of effort to
ensure mutual benefit and overall reciprocity within the Agreement.

All decisions of the Coordinating Committee will be by unanimity. The Coordinating
Committee delegation from each Party shall have one vote, to be cast by the Head of the
Delegation.

Each Party will nominate an Executive Secretary to act on its behalf during periods
between meetings of the Coordinating Committee in all matters concerning cooperation
under this Agreement. The Executive Secretaries will be responsible for day-to-day
management of the cooperation.

Article V
Project Agreements

When the Coordinating Committee agrees to undertake a cooperative activity, it will approve a
Project Agreement to this Agreement and subject to its terms. Each Project Agreement shall list
the participants, and include detailed provisions for implementation of the cooperative activity,
limited to technical scope, management, applicable decontamination
including but not
treatment of
responsibility, exchange of undisclosed information, exchange of equipment,
intellectual property, total costs, cost-sharing and schedule, as appropriate.

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Article VI
Availability and Dissemination of Information

1.

2.

3.

Subject to applicable laws and regulations and to provisions of this Agreement, each
Party and its designees shall undertake to make freely available to the other Party and its
designees any information at its disposal which is required for the execution of this
Agreement.

The Parties shall support the widest possible dissemination of information which they
have the right to disclose, either in their possession or available to them, and which is
either developed jointly or intended to be provided or exchanged pursuant to this
Agreement, subject to the need to protect undisclosed information and the need to
protect intellectual property arising under this Agreement.

Information transmitted by one Party to the other Party under this Agreement shall be
accurate to the best knowledge and belief of the transmitting Party, but the transmitting
Party does not warrant the suitability of the information transmitted for any particular
use or application by the receiving Party or by any third party. Information developed
jointly by the Parties shall be accurate to the best knowledge and belief of both Parties.
Neither Party warrants the accuracy of the jointly developed information or its
suitability for any particular use or application by either Party or by any third party.

Article VII
Intellectual Property

The protection and allocation of intellectual property created or furnished in the course of
collaborative activities under this Agreement will be governed by the provisions in Annex A,
which shall form an integral part of this Agreement and shall apply to all activities conducted
under this Agreement.

Article VIII
Exchanges and Assignments of Personnel

The following provisions shall apply concerning exchanges or assignments of personnel under
this Agreement:

1.

Each Party or participant shall ensure the selection of qualified personnel with skills and
competence necessary to conduct the activities planned under this Agreement. Each
such exchange or assignment of personnel shall be mutually agreed in advance by an
exchange of letters between the Parties or participants, referencing this Agreement and
its pertinent intellectual property provisions.

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2.

3.

4.

5.

6.

7.

Each Party or participant shall be responsible for the salaries, insurance, and allowances
to be paid to its exchanged or assigned personnel.

The sending Party or participant shall pay for the travel and living expenses of its
exchanged or assigned personnel staying at the host establishment, unless otherwise
agreed.

The receiving Party or participant shall arrange for adequate accommodations for the
other Party's or participant’s exchanged or assigned personnel (and their families) on a
mutually agreeable, reciprocal basis.

The receiving Party or participant shall provide all necessary assistance to the
regarding
exchanged or assigned personnel of
administrative formalities (e.g., acquiring visas).

the other Party or participant

Each Party or participant shall ensure that the exchanged or assigned personnel conform
to the general rules of work and safety regulations in force at the host establishment.

Each Party or participant may, at its own expense, observe test activities and analytical
work of the other Party or participant in the areas of cooperation defined in Article II.
Such observation may be exercised by short-term visits or by the assignment of
personnel, subject to the prior agreement of the receiving Party or participant on each
occasion.

Article IX
Exchanges of Equipment, Samples, etc.

Both Parties agree that in the event equipment, instruments, samples, materials or necessary
spare parts (hereinafter referred to as “the equipment, etc.”) are to be exchanged, loaned or
supplied by one participant to the other, the following provisions shall apply covering the
shipment and use of the equipment, etc.:

1.

2.

3.

The sending participant shall supply as soon as possible a detailed list of the equipment,
etc., to be provided, with the relevant specifications and technical and informational
documentation.

The equipment, etc. supplied by the sending participant shall remain its property and
shall be returned to the sending participant on a date to be determined by the
Coordinating Committee unless otherwise agreed in the project agreement referred to
under article V.

The equipment, etc. shall be brought into operation at the host establishment only by
mutual agreement between the participants.

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4.

1.

2.

3.

4.

1.

2.

3.

4.

The receiving participant shall provide the necessary premises for the equipment, etc.
and shall provide for electrical power, water, gas, etc., in accordance with technical
requirements, which shall be mutually agreed.

Article X
General Provisions

Each Party shall conduct the activities provided for in this Agreement subject to its
applicable laws and regulations, and shall provide resources subject to the availability of
appropriated funds.

Unless otherwise specifically agreed in writing by the Parties within the framework of
the Coordinating Committee, all costs resulting from cooperation under this Agreement
shall be borne by the Party that incurs them.

All questions of interpretation or implementation relating to the Agreement arising
during its term shall be resolved by agreement of the Parties.

This Agreement shall apply in so far as EURATOM is concerned, to the territories to
which the Treaty establishing EURATOM applies and to the territories of the countries
participating in the EURATOM fusion program as fully associated third States.

Article XI
Duration, Amendment and Termination

This Agreement shall enter into force upon the latter date of signature and shall remain
in force for five (5) years. Unless one of the Parties notifies the other Party in writing of
its intention to terminate this Agreement at least six months before its expiration, this
Agreement shall be extended automatically for an additional five (5) years.

This Agreement may be amended by written agreement of the Parties.

All joint efforts and experiments not completed at the termination or expiration of this
Agreement may be continued until their completion under the terms of this Agreement.

This Agreement and any Project Agreement hereunder may be terminated at any time at
the discretion of either Party upon six (6) months’ advance notification in writing by the
Party seeking to terminate the Agreement or Project Agreement. Such termination shall
be without prejudice to the rights that may have accrued under this Agreement or
Project Agreement to either Party up to the date of the termination.

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Done at ………………………..this………..day of……………………, 2000, in duplicate, in the
Danish, Dutch, English, Finnish, French, German, Greek, Italian, Portuguese, Spanish and
Swedish languages, each text being equally authentic.

FOR THE DEPARTMENT OF ENERGY
FOR AND ON BEHALF OF THE
GOVERNMENT
UNITED
OF
STATES OF AMERICA:

THE

FOR THE EUROPEAN ATOMIC ENERGY
COMMUNITY REPRESENTED BY THE
COMMISSION OF THE EUROPEAN
COMMUNITIES:

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ANNEX A

INTELLECTUAL PROPERTY RIGHTS

Rights to intellectual property created or furnished under this Agreement shall be allocated as
follows:

I.

Application

This Annex is applicable to all cooperative activities undertaken pursuant
Agreement, except as otherwise specifically agreed.

to this

II.

Ownership, Allocation and Exercise of Rights

A.

B.

C.

D.

For purposes of this Agreement “Intellectual Property” shall have the meaning
found in Article 2 of the Convention establishing the World Intellectual Property
Organization, done at Stockholm, 14 July 1967.

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

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

In the case of cooperative activities between the Parties,

(1)
intellectual
property arising from joint research, i.e., research supported by both Parties, shall
be treated in a Technology Management Plan (TMP) according to the following
principles:

(a)

The Parties shall notify each other within a reasonable time of any
intellectual property rights arising under
relevant
implementing arrangements).

this Agreement

(or

(b) Unless otherwise agreed, rights and interests in intellectual property created
during joint research shall be exploitable by either Party without territorial
restriction.

(c)

Each Party shall seek protection for the intellectual property to which it
obtains rights and interests under the TMP in a timely fashion.

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(d) Each Party shall have a non-exclusive, irrevocable, royalty-free license to
use any intellectual property arising under this Agreement for research and
development purposes only.

(e) Visiting researchers shall receive intellectual property rights and royalty
shares earned by the host institutions from licensing of such intellectual
property rights under the policies of the host institutions.

In all other cases, to the extent required by its laws and regulations, each
(2)
Party shall require all its participants to enter into specific agreements concerning
the implementation of joint research and the respective rights and obligations of
the agreements will
the participants. With respect
normally address, among other things, ownership, protection, user rights for
research and development purposes, exploitation and dissemination, including
arrangements for
the rights and obligations of visiting
researchers and dispute settlement procedures. The agreements may also address
foreground and background information, licensing and deliverables.

to intellectual property,

joint publication,

E. While maintaining the conditions of competition in areas affected by this
Agreement, each Party shall endeavor 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 use of information created, or otherwise made
available, under this Agreement and its dissemination insofar as this is in
accordance both with the conditions set out in this Agreement, the provisions of
Section IV hereof and any rules which may be in force under the Parties' domestic
laws governing treatment of sensitive or confidential information in the nuclear
field, and (ii) the adoption and implementation of international standards.

III.

Copyright Works

Consistent with the terms of this Agreement, copyright belonging to the Parties or to
participants shall be accorded treatment consistent with the Agreement on Trade-
Related Aspects of Intellectual Property Rights administered by the World Trade
Organization.

IV.

Scientific Literary Works

Subject
following procedures shall apply:

to the treatment provided for undisclosed information in Section V,

the

A.

Each Party shall be entitled to a non-exclusive, irrevocable, royalty-free license in
all countries to translate, reproduce and publicly distribute information contained
journals, articles, reports, books, or other media,
in scientific and technical

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directly arising from joint research pursuant to this Agreement by or on behalf of
the Parties.

B.

All publicly distributed copies of a copyrighted work prepared under this
provision shall indicate the names of the authors of the work unless an author
explicitly declines to be named. They shall also bear a clearly visible
acknowledgment of the cooperative support of the Parties.

V.

Undisclosed Information

A. Documentary Undisclosed Information

1.

Each Party and the participants shall identify at the earliest possible moment
the information that they wish to remain undisclosed in relation to this
Agreement, taking account, inter alia, of the following criteria:

–

–

–

the information is secret in the sense that it is not, as a body or in the
precise configuration or assembly of its components, generally known
or readily accessible by lawful means;

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

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

The Parties or 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.

Each Party or participant shall ensure that undisclosed information under
this Agreement and its ensuant privileged nature is readily recognizable as
such by the other Party or participant, 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 or participant receiving undisclosed information pursuant to such
agreement shall respect the privileged nature thereof. These limitations shall
automatically terminate when this information is disclosed by the owner
without restriction.

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3.

Undisclosed information communicated under this Agreement may be
disseminated by the receiving Party or participant to persons employed by
the receiving Party or participant
including its contractors, and other
concerned departments of the Party or participant authorized for the specific
purposes of the joint research under way, provided that any undisclosed
information so disseminated shall be protected to the extent provided by
each Party's laws and regulations and shall be readily recognizable as such,
as set out above.

B.

Non-Documentary Undisclosed Information

Non-documentary undisclosed or other confidential or privileged information
provided in seminars and other meetings arranged under the Agreement, or
information arising from the attachment of staff, use of facilities, or joint projects,
will be treated by the Parties or their designees according to the principles
specified for documentary information in this Agreement, provided, however, that
the recipient of such undisclosed or other confidential or privileged information
has been made aware in writing of the confidential character of the information
communicated not later than the time such a communication is made.

C.

Control

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

VI.

Dispute Settlement and New Types and Unforeseen Intellectual Property

A. Disputes between the Parties concerning intellectual property shall be resolved in
accordance with Article 12 of the Agreement for Cooperation in the Peaceful Uses
of Nuclear Energy between the European Atomic Energy Community and the
United States of America.

B.

In the event either Party or a participant concludes that a new type of intellectual
property not covered in a TMP or agreement between participants may result from
a cooperative activity undertaken pursuant
if other
unforeseen difficulties arise, the Parties shall enter into immediate discussions
with the object of assuring that the protection, exploitation and dissemination of
the intellectual property in question are adequately provided for in their respective
territories.

to this Agreement, or

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