Proposal for a Council Decision concluding the Additional Protocol to the Agreement establishing an Association between the European Economic Community and the Republic of Malta, to associate the Republic of Malta with the fifth framework programme of the European Community for research, technological development and demonstration activities (1998 to 2002)
Date: 2001-12-18
Institutions: European Commission
Subjects: EU programme, Malta, association agreement (EU), protocol to an agreement, research programme, technological change

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Proposal for a Council Decision concluding the Additional Protocol to the Agreement establishing
an Association between the European Economic Community and the Republic of Malta, to
the European
associate the Republic of Malta with the fifth framework programme of

Community for research, technological development and demonstration activities (1998-2002)

(2002/C 103 E/14)

COM(2001) 777 final — 2001/0303(CNS)

(Submitted by the Commission on 18 December 2001)

(6) By Decision of 17 October 2000, the Council authorised
the Commission to negotiate on behalf of the European
Community an additional protocol
to the Association
Agreement, to associate Malta with the fifth framework
programme (hereinafter ‘the Additional Protocol’).

(7) By Decision of 22 May 2001,

the Council authorised,
subject to its subsequent conclusion, the signature of the
Additional Protocol resulting from these negotiations and
its entry into force, on a provisional basis, on 1 March
2001.

(8) The Additional Protocol was signed on 20 June 2001 in

Brussels.

(9) The Additional Protocol should be concluded, and its
definitive entry into force notified to the Maltese auth-
orities,

HAS ADOPTED THIS DECISION:

Article 1

The Additional Protocol to the Association Agreement between
the European Economic Community and the Republic of Malta,
to associate the Republic of Malta with the fifth framework
programme of the European Community for research, tech-
nological
activities
and
(1998-2002), is hereby approved on behalf of the Community.

demonstration

development

The text of the Additional Protocol and its two Annexes is
attached to this Decision.

Article 2

In accordance with Article 10 of the Additional Protocol, the
President of the Council will notify the Republic of Malta of the
completed the
fact
procedures necessary for the Additional Protocol
to enter
into force.

the European Commission has

that

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 170(2)
in
conjunction with the first sentence of the first subparagraph
of Article 300(2) and the first subparagraph of Article 300(3)
thereof,

thereof

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament,

Whereas:

(1) The Agreement establishing an association (hereinafter ‘the
Association Agreement’) between the European Economic
Community and the Republic of Malta, (hereinafter ‘Malta’)
entered into force on 1 April 1971.

(2) The conclusions of the Luxembourg European Council of
12 and 13 December 1997 confirmed the possibility of
associating candidate countries with the Community's
framework programme in the field of research and tech-
nological development, as one of the instruments of the
pre-accession strategy to be applied to those countries.

(3) By Decision No 182/99/EC (1) the European Parliament and
the Council of
the European Union adopted the fifth
framework programme of the European Community for
technological development and demonstration
research,
activities (1998-2002)
‘the fifth framework
programme’).

(hereinafter

(4) The Helsinki European Council of 10 and 11 December
1999 decided to convene a bilateral
intergovernmental
conference in February 2000 on Malta's accession to the
European Union.

(5) Malta formally informed the European Commission that it
wished such an association with the fifth framework
programme from 1 January 2001.

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

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to the Agreement establishing an Association between the European Economic Community and
the Republic of Malta

ADDITIONAL PROTOCOL

THE EUROPEAN COMMUNITY, hereinafter referred to as ‘the Community’,

on the one part, and

THE REPUBLIC OF MALTA, hereinafter referred to as ‘Malta’,

on the other part,

WHEREAS the Agreement establishing an Association between the European Economic Community and the
Republic of Malta (hereinafter referred to as ‘the Association Agreement’), has entered into force on 1 April
1971;

WHEREAS the European Council at its meeting in Helsinki on 10 and 11 December 1999 decided to
convene a bilateral intergovernmental conference on the adhesion of Malta to the European Union;

WHEREAS the European Council at its meeting in Luxembourg on 12 and 13 December 1997 had called
for the opening of certain Community programmes (such as in the field of research) to the candidate
countries, as a way of familiarising themselves with the policies and working methods of the Union, each
candidate country being expected to make a steadily increasing financial contribution of its own;

WHEREAS the aforementioned conclusions had also called for the participation of the candidate countries,
as observers and for the points which concern them, in the committees assisting the Commission in the
implementation of the programmes to which they contribute financially;

WHEREAS, by Decision No 182/99/EC, the Council of the European Union and the European Parliament
adopted a Framework Programme of the European Community activities in the field of research and
technological development and demonstration (1998-2002), hereinafter called the ‘Fifth Framework
Programme’;

WHEREAS the Government of Malta requested by letter dated 3 April 2000 its association to the Fifth
Framework Programme from the 1 January 2001,

HAVE AGREED AS FOLLOWS:

Article 1

Article 2

Research entities established in Malta, in accordance with
1.
specific
laws of Malta, may participate
the
programmes of
the Fifth Framework Programme. Maltese
scientists or research entities may participate in the activities
of the Joint Research Centre.

in all

the

Research entities established in the Community may
2.
participate in research programmes and projects in Malta in
themes equivalent to those of the programmes of the Fifth
Framework Programme.

‘Research entities’, as referred to in this protocol, shall
engaged in
including small and

3.
include
research activities,
medium-sized enterprises, or natural persons.

alia: universities, organisations

industrial companies,

inter

Co-operation may take the following forms:

1. participation of research entities established in Malta in the
implementation of all specific programmes adopted under
the Fifth Framework Programme,
in accordance with the
terms and conditions laid down in the ‘Rules for the partici-
pation of undertakings, research centres and universities and
for the dissemination of research results for the implemen-
tation of the Fifth Framework Programme of the European
Community’.

2. financial contribution by Malta to the budgets of

the
programmes adopted for the implementation of the Fifth
Framework Programme on the basis of the ratio of the
GDP of Malta to that of
the
European Union.

the Member States of

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3. participation of

established

research entities

in the
Community in Maltese research projects and rights to
their results,
in accordance with the laws of Malta in
every case, and shall require the joint participation of at
least one Maltese research entity. Research entities estab-
lished in the Community participating in Maltese research
projects within research and development programmes shall
cover their own costs, including their relative share of the
project's general management and administrative costs.

4. timely provision of information concerning the implemen-
tation of RTD programmes in Malta and the Community,
and concerning the results of work undertaken within the
framework of co-operation.

5. co-operation may be adapted and developed at any time by

mutual agreement between the Parties.

be carried out in the forms necessary for the implementation,
management and operation of these programmes.

2.
The proportionality factor governing the contribution of
Malta shall be obtained by establishing the ratio between the
gross domestic product of Malta, at market prices, and the sum
of gross domestic products, at market prices, of the Member
States of the European Union and Malta. This ratio shall be
calculated on the basis of the latest statistical data from the
(Eurostat)
Statistical Office of
pertaining on the same year, available at the time of publi-
cation of the preliminary draft budget of the European Union.

the European Communities

In order to facilitate its participation in the specific
3.
programmes, the contribution of Malta will be implemented
as follows:

Article 3

Year 2001: contribution according to the proportionality factor
fixed in accordance with paragraph 2 multiplied by 0,5

1.
Research entities established in Malta participating in
Community research programmes, shall, as regards ownership,
exploitation and dissemination of information and intellectual
property arising from such participation, have the same rights
and obligations as those of research entities established in the
Community, subject to the provisions of Annex A.

2.
Research entities established in the Community, taking
part in Maltese research projects within research and devel-
opment programmes, shall, as regards ownership, exploitation
and dissemination of
information and intellectual property
arising from such participation, have the same rights and obli-
gations as those of Maltese research entities in the project in
question.

Article 4

A joint committee shall be established under this Protocol, to
be called ‘EC-Malta Research Committee’, whose functions shall
include:

— reviewing, evaluating and discussing measures to ensure the

implementation of this Protocol,

— examining any measure of a nature to improve and develop

co-operation,

The committee, which shall be composed of representatives of
rules of
the Commission and of Malta,
procedure.

shall adopt

its

It shall meet at the request of any of the Parties and at least
once a year.

Article 5

Year 2002: contribution according to the proportionality factor
fixed in accordance with paragraph 2 multiplied by 0,9.

The rules governing the financial contribution of Malta

4.
are set out in Annex B.

5.
The rules for financial participation by the Community
are set out in Annex IV of Decision No 182/99/EC of the
Council of the European Union and the European Parliament
of 22 December 1998.

Article 6

established in Malta participating

1. Without prejudice to the provisions of Article 3, research
entities
Fifth
Framework Programme shall have the same contractual rights
and obligations as entities established in the Community,
taking into account the mutual
interests of the Community
and Malta.

in the

2.
For Maltese research entities, the terms and conditions
applicable for the submission and evaluation of proposals
and those for the granting and conclusion of contracts under
Community programmes shall be the same as those applicable
for contracts concluded under the same programmes with
research entities in the Community, taking into account the
mutual interests of the Community and Malta.

experts

shall be

taken into consideration,
3. Maltese
alongside Community experts,
in the selection of evaluators
or experts under the Community's RTD programmes and as
members of the advisory groups and other consultative bodies
which assist the Commission in the implementation of the Fifth
Framework Programme.

The financial contribution of Malta deriving from partici-
1.
pation in the implementation of the specific programmes shall
be established in proportion to, and in addition to, the amount
available each year in the general budget of the European
Union
the
Commission's financial obligations stemming from work to

appropriations

commitment

to meet

for

4. Without prejudice to the provisions of Article 3, research
entities established in the Community participating in research
projects within research and development programmes shall
have the same contractual rights and obligations as Maltese
entities,
the
Community and Malta.

taking into account

interests of

the mutual

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Financial

Regulations,

Community's

A Maltese research entity may be co-ordinator of a
5.
project under the same terms and conditions applicable to
In conformity with
entities established in the Community.
the
contractual
arrangements concluded with, or by, Maltese research entities
shall provide for controls and audits to be carried out by, or
under the authority of,
the Commission and the Court of
Auditors. As far as financial audits are concerned, they may
be carried out with the purpose of controlling such entities'
income and expenditures, related to the contractual obligations
towards the Community. In a spirit of co-operation and mutual
interest,
the relevant Maltese authorities shall provide any
reasonable and feasible assistance as may be necessary or
helpful under the circumstances to perform such controls
and audits.

6.
For research entities from the Community, the terms and
conditions applicable for the submission and evaluation of
the granting and conclusion of
proposals and those for
contracts for projects within Maltese programmes shall be
equivalent to those applicable for contracts concluded under
the same research and development programmes with research
entities in Malta, taking into account the mutual interests of the
Community and Malta.

Article 7

1.
Each Party undertakes, in accordance with its own rules
and regulations, to facilitate the movement and residence of
research workers participating, in Malta and in the Community,
in the activities covered by this Protocol and to facilitate cross
border movement of goods intended for use in such activities.

Co-operation under this Protocol shall be exempt from
2.
Maltese
and
restrictions on imports and exports in respect of goods and
services intended for use under such co-operation.

customs duties, prohibitions

indirect

taxes,

Article 8

1. Maltese representatives will, for the points which concern
them, participate as observers in the programme committees of
the Fifth Framework Programme. These committees shall meet
without the presence of Maltese representatives at the time of
voting. Malta will be informed.

2.
Participation as referred to in paragraph 1 of this Article
shall take the same form, including procedures for receipt of
information and
to
participants from Member States.

documentation,

applicable

that

as

Article 9

This Protocol is hereby concluded for the years 2001 and

1.
2002.

Subject

to paragraph 1, either of

2.
the Parties may
terminate this Protocol at any time upon twelve months'
notice in writing. Projects and activities in progress at the
this Protocol shall
time of
the conditions laid
continue until
down in this Protocol.

termination and/or expiry of
their completion under

Should the Community decide to revise one or more
3.
this Protocol may be terminated
Community programmes,
under mutually agreed conditions. Malta shall be notified of
the exact content of
the revised programmes within one
week of their adoption by the Community. The Parties shall
notify one another, within one month after the adoption of the
Community decision, of any intention to terminate this
Protocol.

4. Where the Community adopts a new multi-annual
this
framework programme for research and development,
Protocol may be renegotiated or renewed under mutually
agreed conditions.

Article 10

This Protocol shall enter into force on the date on which the
Parties have notified each other of
the
procedures necessary for the purpose.

the completion of

In the meantime, the Protocol shall be applied provisionally in
all its elements from 1 March 2001, subject to reciprocity.

Article 11

This Protocol
integral part of
between the
Republic of Malta.

including Annexes A and B thereto forms an
the Agreement establishing an Association
and the

European Economic Community

Article 12

This Protocol shall be drawn up in duplicate in the Danish,
Italian,
Dutch, English, Finnish, French, German, Greek,
Portuguese, Spanish, Swedish and Maltese languages, each of
these texts being equally authentic.

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PRINCIPLES ON THE ALLOCATION OF INTELLECTUAL PROPERTY RIGHTS

ANNEX A

Rights to intellectual property created or furnished under the Protocol shall be allocated as provided in this Annex.

This Annex is applicable to joint research undertaken pursuant to this Protocol, except as otherwise specifically agreed
by the Parties.

I. Application

II. Ownership, Allocation and Exercise of Rights

1. For purposes of this Protocol ‘intellectual property’ shall have the meaning found in Article 2 of the Convention

establishing the World Intellectual Property Organisation, done at Stockholm, 14 July 1967.

2. This Annex addresses the allocation of rights, interests and royalties of the Parties and their participants. Each Party
and its participants shall ensure that the other Party and its participants 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 of
rights, interests and royalties between a Party and its nationals or participants, which shall be determined by the laws
and practices applicable to each party.

3. The following principles shall apply and shall be provided for in the contractual arrangements:

(a) Adequate protection of intellectual property. The Parties, their agencies and/or their participants, as appropriate,
shall ensure that they notify one another within a reasonable time of the creation of any intellectual property
arising under this Protocol or implementing arrangements and to seek protection for such intellectual property in
a timely fashion.

(b) Taking account of the contributions of the Parties or their participants in determining the rights and interests of

the Parties and participants.

(c) Effective exploitation of results.

(d) Non-discriminatory treatment of participants from the other party as compared with the treatment given to its

own participants.

(e) Protection of Business-Confidential information.

4. The participants shall jointly develop a Technology Management Plan (TMP) in respect of the ownership and use,
including publication, of information and intellectual property to be created in the course of joint research. The
indicative features of a TMP are contained in the Appendix to this Protocol. The TMP shall be approved by the
responsible funding agency or department of the Party involved in financing the research, before the conclusion of
the specific research and development co-operation contract to which it is attached.

The TMPs shall be developed taking into account the aims of the joint research, the relative financial or other
contributions of the Parties or participants, the advantages and disadvantages of licensing by territory or for fields of
use, the transfer of export-controlled data, goods or services, requirements imposed by the applicable laws including
those of the Parties concerning intellectual property rights and other factors deemed appropriate by the participants.

The rights and obligations concerning the research generated by visiting researchers in respect of intellectual property
shall also be addressed in the joint technology management plans.

5. Subject to the specific provisions of the Parties concerning intellectual property rights, information or intellectual
property created in the course of joint research and not addressed in the technology management plan shall be
allocated, with the approval of the Parties, according to the principles set out in the technology management plan. In
case of disagreement, such information or intellectual property shall be owned jointly by all the participants involved
in the joint research from which the information or intellectual property results. Each participant to whom this
provision applies shall have the right to use such information or intellectual property for his own commercial
exploitation with no geographical limitation.

6. Each Party shall ensure that the other Party and its participants may have the rights to intellectual property allocated

to them in accordance with these principles.

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

(i) the dissemination and use of information created, disclosed or otherwise made available, under the Protocol, and

(ii) the adoption and implementation of international standards.

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

Copyright belonging to the Parties or to their participants shall be accorded treatment consistent with the TRIPS
Agreement (Agreement on Trade Related Aspects of Intellectual Property Rights administered by the World Trade
Organisation) as well as the Berne Convention (Paris Act 1971).

III. Copyright works

IV. Scientific literary works

Without prejudice to Section V, and unless otherwise agreed in the TMP, publication of results of research shall be made
jointly by the parties or participants to that joint research. Subject to the foregoing general rule, the following
procedures shall apply:

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

2. The Parties shall ensure that literary works of a scientific character arising from joint research pursuant to this

Agreement and published by independent publishers shall be disseminated as widely as possible.

3. All copies of a copyright work to be publicly distributed and prepared under this provision shall indicate the names
of the author(s) of the work unless an author explicitly declines to be named. They shall also bear a clearly visible
acknowledgement of the co-operative support of the Parties.

A. Documentary undisclosed information

V. Undisclosed information

1. Each Party, its agencies or its participants, as appropriate, shall identify at the earliest possible moment and
preferably in the technology management plan the information that they wish to remain undisclosed, taking into
account inter alia the following criteria:

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

(b) the actual or potential commercial value of the information by virtue of its confidentiality;

(c) previous protection of the information in the sense that it has been subject to steps that were reasonable

under the circumstances by the person lawfully in control, to maintain its confidentiality.

The Parties, their agencies and their participants, as appropriate, 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 may not
be disclosed.

2. Each Party shall ensure that it and its participants clearly identify undisclosed information, 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 and a participant receiving undisclosed information shall respect the privileged nature thereof. These
limitations shall automatically terminate when this information is disclosed by the owner into the public domain.

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3. Undisclosed information communicated under this Protocol may be disseminated by the receiving Party or its
organisation to persons within or employed by the receiving Party or organisation authorised for the specific
purposes of the joint research under way, provided that any undisclosed information so disseminated shall be
pursuant to an agreement of confidentiality and shall be readily recognisable as such, as set out above.

4. With the prior written consent of

the receiving Party may
disseminate such undisclosed information more widely than otherwise permitted in paragraph 3 above. The
Parties shall cooperate in developing procedures for requesting and obtaining prior written consent for such wider
dissemination, and each Party will grant such approval to the extent permitted by its domestic policies, regu-
lations and laws.

the Party providing undisclosed information,

B. Non-documentary undisclosed information

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

C. Control

Each Party shall endeavour to ensure that undisclosed information received by it under this Protocol 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 sections A and B above, it shall immediately inform
the other Party. The Parties shall thereafter consult to define an appropriate course of action.

Appendix

Indicative features of a Technology Management Plan (TMP)

The TMP is a specific agreement to be concluded between the participants about the implementation of joint research
and the respective rights and obligations of the participants.

With respect to intellectual property, the TMP will normally address, among other things, ownership, protection, user
rights for research and development purposes, exploitation and dissemination, including arrangements for joint publi-
cation, the rights and obligations of visiting researchers and dispute settlement procedures. The TMP may also address
foreground and background information, licensing and deliverables.

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ANNEX B

FINANCIAL RULES GOVERNING THE FINANCIAL CONTRIBUTION OF MALTA REFERRED TO IN ARTICLE
5 OF THIS PROTOCOL

1. Determination of the financial participation

1.1. The Commission of the European Communities shall communicate to Malta, and shall inform the sub-committee
referred to in Article 4 of this Protocol, together with relevant background material, as soon as possible, and at the
latest on 1 September, of each financial year:

(a) the amounts in commitment appropriations, in the statement of expenditure of the preliminary draft budget of

the European Union corresponding to the Fifth Framework Programme;

(b) the estimated amount of the contributions derived from the preliminary draft budget, corresponding to the

participation of Malta in the Fifth Framework Programme.

Nonetheless, in order to facilitate internal budgetary procedures, the Commission services shall provide corre-
sponding indicative figures at the latest on 30 May of each year.

1.2. As soon as the general budget has been finally adopted the Commission shall communicate to Malta the above

amounts in the statement of expenditure corresponding to the participation of Malta.

2.

Payment procedures

2.1. The Commission shall issue, at the latest on 1 January and 15 June of each financial year, a call for funds to Malta
corresponding to its contribution under this Protocol. These calls for funds shall provide, respectively, for the
payment:

— of six-twelfths of the contribution of Malta not later than 20 February,

— and six-twelfths of its contribution not later than 15 July.

However, the six-twelfths, to be paid not later than 20 February are calculated on the basis of the amount set out
in the statement of revenue of the preliminary draft budget: the regularisation of the amount thus paid shall occur
with the payment of the six-twelfths not later than 15 July.

2.2. For the first year of implementation of this protocol, the Commission shall issue a first call for funds within 30
days of its entry into force. Should this call be issued after 15 June, it shall provide for the payment of twelve/
twelfths of the contribution of Malta within 30 days, calculated on the basis of the amount set out in the statement
of the revenue of the budget.

2.3. The contribution of Malta shall be expressed and paid in euro.

2.4. Malta shall pay its contribution under this Protocol according to the schedule in paragraphs 2.1 and 2.2 above.
Any delay in payment shall give rise to the payment of interest at a rate equal to the one-month interbank offered
rate (EURIBOR) in euro as quoted on Telerate. This rate shall be increased by 1,5 % for each month of delay. The
increased rate shall be applied to the entire period of delay. However, the interest shall be due only if the
contribution is paid more than thirty days after the scheduled payment dates mentioned in paragraphs 2.1 and
2.2 above.

2.5. Travel costs incurred by Maltese representatives and experts for the purposes of taking part in the work of the
committee referred to in Articles 4, 6.3 and 8.1 of this Protocol and those involved in the implementation of the
Fifth Framework Programme shall be reimbursed by the Commission on the same basis as and in accordance with
the procedures currently in force for the representatives and experts of the Member States of the European Union.

3. Conditions for the implementation

3.1. The financial contribution of Malta to the Fifth Framework Programme in accordance with Article 5 of the Protocol

shall normally remain unchanged for the financial year in question.

3.2. The Commission, at the time of the closure of the accounts relating to each financial year (n), within the
framework of the establishment of the revenue and expenditure account, shall proceed to the regularisation of
the accounts with respect to the participation of Malta, taking into consideration modifications which have taken
place, either by transfer, cancellations, carry-overs, decommitments, or by supplementary and amending budgets
during the financial year. This regularisation shall occur at the time of the second payment for the year n+1.
Further regularisations shall occur every year until July 2006.

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Payment by Malta shall be credited to the Committee programmes as budget receipts allocated to the appropriate
budget heading in the statement of revenue of the general budget of the European Union.

The financial regulation applicable to the general budget of the European Union shall apply to the management of
the appropriations.

4.

Information

At the latest on 31 May of each financial year (n+1), the statement of appropriations for the Fifth Framework
Programme related to the previous financial year (n), shall be prepared and transmitted to Malta for information,
according to the format of the Commission's revenue and expenditure account.