Council Regulation No 2322/2002 (Euratom) of 5 November 2002 concerning the rules for the participation of undertakings, research centres and universities in the implementation of the sixth framework programme of the European Atomic Energy Community (2002 to 2006)
Date: 2002-11-05
Institutions: Council of the European Union
Subjects: EAEC, EU programme, research programme, shareholding, type of business, university

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COUNCIL REGULATION No 2322/2002 (EURATOM)

of 5 November 2002

concerning the rules for the participation of undertakings, research centres and universities in the
implementation of the sixth framework programme of the European Atomic Energy Community
(2002 to 2006)

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty establishing the European Atomic
Energy Community, and in particular Article 7 thereof,

Having regard to the proposal from the Commission (1),

Having regard to the opinion of the European Parliament (2),

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

Whereas:

(1)

(2)

(3)

the European
The sixth framework programme of
for nuclear
Atomic Energy Community (Euratom)
research and training activities, also contributing to the
creation of the European Research Area (2002 to 2006)
(the ‘sixth framework programme’), was adopted by
Council Decision 2002/668/Euratom (4). The rules for
financial participation by the Community need to be
supplemented by other provisions to be laid down in
accordance with Article 7 of the Treaty.

and

characteristics

framework which takes

Those provisions should fit into a coherent and trans-
parent
the
full account of
of
objectives
instruments
defined in Annex III
specific programme
(Euratom) for research and training on nuclear energy,
adopted by Council Decision 2002/837/Euratom (5), in
order to guarantee the most efficient implementation
possible.

to the

the

The rules for the participation of undertakings, research
centres and universities should take account of
the
nature of
the research (including demonstration) and
training activities in the field of nuclear energy. They
the
may, moreover, vary, depending on whether
participant is based in a Member State, in an associated
State, whether a candidate country or not, or in a third
country, and on its legal structure, namely whether it is
a national organisation, an international organisation, of
European interest or not, or an association formed by
participants.

(4)

(5)

(6)

(7)

(8)

In conformity with the sixth framework programme, the
participation of legal entities from third countries should
be envisaged in line with the objectives of international
cooperation, particularly as enshrined in Article 101 of
the Treaty.

International organisations which are dedicated to
developing cooperation in the field of
research in
Europe and which are largely made up of Member
States or associated States contribute to the creation of
the European Research Area. They should therefore be
encouraged to participate
sixth framework
programme.

in the

Activities under the sixth framework programme should
be conducted in compliance with ethical principles,
including those reflected in the Charter of Fundamental
the European Union, and should strive to
Rights of
improve information for and dialogue with society as
well as to increase the role of women in research.

The Joint Research Centre takes part in indirect research
and technological development actions on the same
basis as legal entities established in a Member State.

Activities under the sixth framework programme should
comply with the financial
interests of the Community
and should safeguard those interests. The Commission's
responsibility for the implementation of the framework
programme and its specific programmes also includes
the financial aspects arising from them,

HAS ADOPTED THIS REGULATION:

CHAPTER I

INTRODUCTORY PROVISIONS

Article 1

Subject

(1) OJ C 103 E, 30.4.2002, p. 331.
(2) Opinion delivered on 3 July 2002 (not yet published in the Official

Journal).

(3) Opinion delivered on 17 July 2002 (not yet published in the

Official Journal).

(4) OJ L 232, 29.8.2002, p. 34.
(5) OJ L 294, 29.10.2002, p. 74.

the sixth framework programme of

This Regulation establishes rules for the participation of enter-
prises, research centres and universities in research carried out
under
the European
Atomic Energy Community for research and training activities,
also contributing to the creation of the European Research
Area (2002 to 2006)
(hereinafter referred to as the ‘sixth
framework programme’).

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Article 2

Definitions

For the purposes of this Regulation:

11.

‘international organisation’ means any legal entity arising
from an association of States, other than the Community,
established on the basis of a treaty or similar act, having
common institutions and an international legal personality
distinct from that of its Member States;

1.

2.

4.

5.

6.

7.

8.

‘R&TD activity’ means one of
the research and tech-
nological development activities, including demonstration
activities, and training activities, described in Annexes I
and III to the sixth framework programme;

12.

‘direct action’ means an R&TD activity undertaken by the
Joint Research Centre (hereinafter referred to as JRC) in the
execution of
the tasks assigned to it under the sixth
framework programme;

3.

‘indirect action’ means an R&TD activity undertaken by
one or more participants by means of an instrument of
the sixth framework programme;

the mechanisms

‘instruments’ means
indirect
Community intervention as laid down in Annex III to
the
research and
training on nuclear energy;

specific programme

(Euratom)

for

for

grant

a
the

agreement

the
‘contract’ means
Community
the
and
performance of an indirect action establishing rights and
obligations between the Community and the participants
on the one hand, and between the participants in that
indirect action, on the other;

between
concerning

participants

organisation,

‘international European interest organisation’ means an
international
of whose
members are European Community Member States or
associated States, and whose principal objective is to
promote European scientific and technological coop-
eration;

the majority

13.

‘associated candidate country’ means an associated State
acknowledged by the Community as a candidate for
accession to the European Union;

14.

‘associated State’ means a State which is party to an inter-
national agreement with the European Atomic Energy
Community, under the terms or on the basis of which it
makes a financial contribution to all or part of the sixth
framework programme;

15.

‘third country’ means a State that is neither a Member
State nor an associated State;

16.

‘European Economic Interest Grouping (EEIG)’ means any
legal entity established in accordance with Council Regu-
lation (EEC) No 2137/85 (1);

17.

‘budget’ means a financial plan estimating all the resources
and expenditure needed to carry out an indirect action;

‘consortium agreement’ means
that
participants in an indirect action conclude amongst them-
selves for its implementation. Such an agreement shall not
affect participants' obligations to the Community and to
one another arising out of this Regulation or the contract;

agreement

an

‘participant’ means a legal entity contributing to an
indirect action and having rights and obligations with
regard to the Community under the terms of this Regu-
lation or according to the contract;

‘legal entity’ means any natural person, or any legal person
its place of estab-
created under the national
lishment, under Community law or
law,
having legal personality and being entitled to have rights
and obligations of any kind in its own name;

international

law of

18.

19.

20.

9.

‘consortium’ means all the participants in the same indirect
action;

10.

the

‘coordinator’ means
by
participants in the same indirect action and accepted by
the Commission, having specific additional obligations
arising out of this Regulation and the contract;

participant

appointed

‘irregularity’ means any infringement of a provision of
Community law or any breach of a contractual obligation
resulting from an act or omission by a legal entity which
has, or would have, the effect of prejudicing the general
budget of the European Union or budgets managed by it
through unjustified expenditure;

‘pre-existing know-how’ means the information which is
held by participants prior to the conclusion of the contract
or acquired in parallel with it, as well as copyrights or
following
such
rights
applications for, or the issue of, patents, designs, plant
varieties, supplementary protection certificates or similar
forms of protection;

information

pertaining

to

the results,

‘knowledge’ means
including information,
whether or not they can be protected, which are yielded
by direct actions and indirect actions, as well as copyrights
or rights pertaining to such results following applications
the issue of patents, designs, plant varieties,
for, or
supplementary protection certificates or similar forms of
protection;

(1) OJ L 199, 31.7.1985, p. 1.

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21.

‘dissemination’ means the disclosure of knowledge by any
appropriate means other than publication resulting from
the formalities for protecting knowledge;

22.

‘use’ means the direct or indirect utilisation of knowledge
for developing, creating and
in research activities or
marketing a product or process or
for creating and
providing a service;

23.

‘work programme’ means a plan drawn up by the
Commission for
specific
programme;

implementation of

the

a

CHAPTER II

PARTICIPATION IN INDIRECT ACTIONS

Article 4

Scope and general principles

legal

entities

The rules set out in this Chapter apply to the partici-
1.
pation of
in indirect actions. They apply
without prejudice to specific rules for R&TD activities under
the priority thematic area ‘Fusion energy research’ of
the
specific programme (Euratom)
for research and training on
nuclear energy set out in Chapter III.

24.

‘joint programme of
activities’ means
undertaken by participants which are
implementing a network of excellence;

the
actions
required for

25.

‘implementation plan’ means all actions by participants in
an integrated project;

Any legal entity participating in an indirect action may
to the

2.
receive a Community financial contribution, subject
provisions of Articles 6 and 7.

3.
Any legal entity established in an associated State may
participate in indirect actions on the same footing and shall
have the same rights and obligations as a legal entity estab-
lished in a Member State, subject to the provisions of Article 5.

26.

‘public body’ means a public sector body or a legal entity
governed by private law with a public service mission
providing adequate financial guarantees.

4.
The JRC may participate in indirect actions on the same
footing and shall have the same rights and obligations as a
legal entity established in a Member State.

Article 3

Independence

1.
Two legal entities shall be independent of one another for
the purposes of this Regulation where there is no controlling
relationship between them. A controlling relationship shall
exist 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 more than 50 % of

the
nominal value of the issued share capital in a legal entity,
or of a majority of voting rights of the shareholders or
associates of that entity;

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

making powers in a legal entity.

5.
Any international European interest organisation may
participate in indirect actions on the same footing and shall
have the same rights and obligations as a legal entity estab-
lished in a Member State in accordance with its headquarters
agreement.

6.
the
The work programmes may specify and restrict
participation of legal entities in an indirect action according
to their activity and type, and according to the instrument
deployed and to take into account specific objectives of the
sixth framework programme.

Article 5

Minimum numbers of participants and their place of
establishment

The work programmes

1.
specify the minimum
number of participants required for each indirect action and
also their place of establishment, according to the nature of the
instrument and the objectives of the R&TD activity.

shall

2.
Direct or indirect holding of more than 50 % of the
nominal value of the issued share capital in a legal entity or
of a majority of voting rights of the shareholders or associates
of the said entity by public investment corporations, institu-
tional investors or venture-capital companies and funds shall
not in itself constitute a controlling relationship.

2.
For networks of excellence and integrated projects, the
minimum number of participants shall not be fewer than
three independent legal entities established in three different
Member States or associated States, of which at
two
least
shall be Member States or associated candidate countries.

Ownership or supervision of legal entities by the same
in itself give rise to a controlling

3.
public body shall not
relationship between them.

3.
Specific support actions and actions in favour of human
resources and mobility, except for research training networks,
may be executed by a single legal entity.

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When the work programme establishes a minimum number
that is greater than or equal to two legal entities established
in as many Member States or associated States, this number
shall be fixed according to the conditions provided for in
paragraph 4.

4.
For instruments other than those covered in paragraphs 2
and 3, the minimum number of participants shall not be fewer
than two independent legal entities established in two different
Member States or associated States, of which at least one shall
be a Member State or an associated candidate country.

5.
An EEIG or any legal entity established in a Member State
or associated State according to its national law which is made
up of independent legal entities meeting the criteria of this
Regulation may be the sole participant in an indirect action,
in accordance with the
provided that
conditions fixed pursuant to the provisions of paragraph 1 to
4.

its composition is

Article 6

Participation by legal entities from third countries

1.
Subject to other restrictions that may be specified in the
work programme of the specific programme, any legal entity
established in a third country may participate in R&TD
activities, over and above the minimum number of participants
fixed in accordance with the terms of Article 5, if such partici-
pation is provided for under an R&TD activity or if
is
necessary for carrying out the indirect action.

it

Any legal entity established in a third country may
2.
receive a Community financial contribution,
if provision is
made for this under an R&TD activity or if it is essential for
carrying out the indirect action.

Article 7

Participation by international organisations

Any international organisation other than the international
European interest organisations referred to in Article 4(5)
may take part in R&TD activities, subject to the conditions
set out in Article 6.

to carry out the indirect action, and shall be able to specify the
relevant source of those funds made available by third parties,
including public authorities.

As work progresses, participants shall have the resources as
and when needed to carry out the indirect action.

the indirect action are
The resources needed to carry out
financial
infrastructure,
understood to be human resources,
resources and,
intangible property and other
resources made available by a third party on the basis of a
prior commitment.

if necessary,

Article 9

Submission of proposals for indirect actions

1.
Proposals for indirect actions shall be submitted under
the terms of calls for proposals. These terms shall be set out
in the work programmes.

for proposals may involve a two-stage

Calls
evaluation
procedure. In this case, following a positive evaluation of an
in the first stage, the proposers concerned
outline proposal
shall be requested to submit a complete proposal
in the
second stage.

2.

Paragraph 1 shall not apply to:

(a) specific support actions for the activities of the legal entities

identified in the work programme;

(b) specific support actions consisting of a purchase or service
governed by the terms applicable to public procurement
procedures;

(c) specific support actions with particular characteristics and
value to the objectives and the scientific and technological
content of
for which grant
applications may be submitted to the Commission if so
the specific
in the work programme of
provided for
programme and where such a request does not
fall
within the scope of an open call for proposals;

the specific programme,

Article 8

(d) specific support actions covered by Article 11.

Conditions relating to technical competence and resources

Participants

1.
competence needed to carry out the indirect action.

shall have the knowledge and technical

At

2.
their proposal,
participants shall have at least the potential resources needed

time when they present

the

3.
The Commission may issue calls for expressions of
interest in order to assist it in identifying precise objectives
and requirements
included in the work
programmes and in the calls for proposals. This shall be
without prejudice to any subsequent decision adopted by the
Commission regarding
evaluation and selection of
the
proposals for indirect actions.

that may be

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Calls for expressions of interest and calls for proposals
4.
shall be published in the Official
the European
Communities and shall also be given the widest possible
in particular using the Internet pages of the sixth
publicity,
information
and through specific
framework programme
channels such as the national contact points set up by the
Member States and the associated States.

Journal of

(a) synergies with education at all levels;

(b) readiness and capacity to engage with actors beyond the
research community and with the public as a whole, to
help spread awareness and knowledge and to explore the
wider societal implications of the proposed work;

Article 10

(c) activities to increase the role of women in research.

Evaluation and selection of proposals for indirect actions

The proposals for indirect actions covered in Article 9(1)
1.
and Article 9(2)(c) shall be evaluated according to the following
criteria, where applicable:

(a) scientific and technological excellence and the degree of

innovation;

(b) ability to carry out the indirect action successfully and to
ensure its efficient management, assessed in terms of
resources and competencies and including the organisa-
tional arrangements laid down by the participants;

(c) relevance to the objectives of the specific programme;

(d) European added value, critical mass of resources mobilised

and contribution to Community policies;

(e) quality of

the plan for using and disseminating the
knowledge, potential for promoting innovation and clear
plan for the management of intellectual property.

In applying paragraph 1(d), the following criteria will also

2.
be taken into account:

(a)

for networks of excellence, the scope and degree of the
effort to achieve integration and the network's capacity to
promote excellence beyond its membership, as well as the
prospects of the durable integration of their research capa-
bilities and resources after the end of the period covered by
the Community's financial contribution;

(b) for

integrated projects,

the
objectives and the capacity of the resources to make a
significant contribution to reinforcing competitiveness or
solving societal problems;

the scale of ambition of

(c)

integrated initiatives

for
the
prospects of the initiative's continuing long term after the
end of the period covered by the Community's financial
contribution.

relating to infrastructure,

In applying paragraphs 1 and 2, the following additional

3.
criteria can be taken into account:

Calls for proposals shall determine,

4.
in accordance with
the type of instruments deployed or the objectives of the R&TD
activity, how the criteria set out in paragraph 1 are to be
applied by the Commission.

These criteria, and those of paragraphs 2 and 3, may be
in
specified or complemented in the work programme,
particular
the
proposals for indirect actions to improve information for and
dialogue with society and to promote the competitiveness of
SMEs.

contribution of

account of

to take

the

A proposal

for an indirect action which contravenes
5.
fundamental ethical principles or which does not fulfil the
conditions set out in the work programme or in the call for
proposals shall not be selected. Such a proposal may be
excluded from the evaluation and selection procedures at any
time.

Any participant who has committed an irregularity in the
implementation of an indirect action may be excluded from
the evaluation and selection procedure at any time, due regard
being had to the principle of proportionality.

The Commission shall evaluate the proposals with the
6.
assistance of
independent experts appointed in accordance
with Article 11. For some specific support actions, particularly
those covered by Article 9(2),
independent experts shall be
appointed only if the Commission deems it appropriate. The
Commission shall publish the list of the experts selected.

All proposals submitted for indirect actions shall be treated
confidentially by the Commission, which shall ensure that
the principle of confidentiality is upheld in all procedures
and that the independent experts are bound by this.

Unless otherwise specified in the call for proposals, proposals
shall not be evaluated anonymously.

Proposals for indirect actions shall be selected on the
7.
basis of
the evaluation results and having regard to the
Community funds available. The Commission shall adopt and
publish guidelines setting out detailed provisions for evaluation
and selection procedures.

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Article 11

Article 12

Appointment of independent experts

Contracts and consortium agreements

1.
The Commission shall designate independent experts to
assist with the evaluation required under the sixth framework
programme and the specific programme, and also for the
assistance
second
subparagraph of Article 18(1).

referred to in Article 10(6) and the

The Commission shall conclude a contract

1.
for each
proposal selected for an indirect action. This contract shall
be drawn up in accordance with the provisions of the sixth
framework programme, and in accordance with this Regu-
lation, taking into account the characteristics of the various
instruments concerned.

It may, in addition, set up groups of independent experts to
advise on the implementation of Community research policy.

The Commission shall appoint the independent experts in

2.
accordance with one of the following procedures:

(a) the independent experts appointed by the Commission for
the evaluations provided for in Articles 5 and 6 of the sixth
framework programme and Article 7(2) of
the specific
programme shall be very high-ranking individuals from
industry or politics with significant
the fields of science,
experience
research
programme management at national or international level;

research policy or

in research,

(b) the independent experts appointed by the Commission to
assist
in the evaluation of proposals for networks of
excellence and integrated projects and in the monitoring
of the projects selected and carried out shall be individuals
from the fields of science, industry and/or with experience
in the field of innovation and also with the highest level of
knowledge and who are internationally recognised auth-
orities in the relevant specialist area;

(c) the independent experts appointed by the Commission to
form the groups referred to in the second subparagraph of
paragraph 1 shall be professionals renowned for their
knowledge, skills and top-level experience in the field or
regarding the issues to be dealt with by the group;

into consideration in a balanced manner,

(d) for cases other than those covered by points (a), (b) and (c),
and in order to take the various operators in the research
sector
the
Commission shall appoint independent experts with skills
and knowledge appropriate to the tasks assigned to them.
it shall rely on calls for applications from
To this end,
individuals or calls addressed to research institutions with
a view to establishing lists of suitable candidates, or may, if
it deems appropriate, select any individual with the appro-
priate skills from outside the lists.

an

expert,

appointing

independent

3. When
the
Commission will ensure that the expert is not faced with a
conflict of interests in relation to the matter on which he is
required to give an opinion. To this end, the Commission shall
require experts to sign a declaration to the effect that there is
no such conflict of interest at the time of their appointment
and undertaking to inform the Commission if one should arise
in the course of their duties.

The Commission, after conferring with interested parties from
the Member States and the associated States, will prepare a
model contract to facilitate the drawing up of contracts.

The contract shall establish the rights and obligations of
2.
participants
in accordance with this Regulation, and in
particular the provisions for the scientific, technological and
financial monitoring of the indirect action, for the updating
of its objectives, for changes in consortium membership, for
the payment of the Community financial contribution and, if
applicable, conditions for the eligibility of any necessary expen-
diture.

The contract shall establish rules for dissemination and use of
knowledge and results in accordance with Title II, Chapter 2 of
the Treaty.

contract, which shall be

The
concluded between the
Commission and all participants in an indirect action, shall
enter into force on signature by the Commission and the coor-
dinator. The other participants identified in the contract shall
accede to it in accordance with its terms and shall enjoy the
rights and take on the obligations of participants.

Any participant joining an ongoing indirect action shall accede
to the contract and enjoy the rights and take on the obligations
of participants towards the Community.

3.
In order to ensure the protection of the financial interests
of the Community, appropriate penalties shall be included in
the contracts, as defined, inter alia, in Council Regulation (EC,
Euratom) No 2988/95 of 18 December 1995 on the protection
of the European Communities' financial interests (1).

Participants

4.
in an indirect action shall conclude a
consortium agreement, unless otherwise specified in the call
for proposals. The Commission shall publish non-binding
guidelines on points that may be addressed by the consortium
agreement, such as:

(a) the internal organisation of the consortium;

(b) intellectual property rights' arrangements;

(c) settlement

of

internal

disputes,

pertaining

to

the

consortium agreement.

(1) OJ L 312, 23.12.1995, p. 1.

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To this end the Commission shall confer with interested parties
from the Member States and the associated States.

Article 13

Execution of indirect actions

The consortium shall implement the indirect action and
1.
shall take all necessary and reasonable measures to that end.

The Community financial contribution shall be paid to the
coordinator. The coordinator shall administer the Community
financial
between
regarding
participants and activities in accordance with the contract
and with decisions taken by the consortium according to the
internal procedures established in the consortium agreement.

contribution

allocation

its

shall

Participants
inform the Commission of any event,
including modification of the consortium agreement, which
might affect the implementation of the indirect action and
the rights of the Community.

2.
Technical implementation of the indirect action shall be
the collective responsibility of the participants. Each participant
shall also be liable for the use of the Community financial
contribution in proportion to their share of the project up to
a maximum of the total payments they have received.

Should a participant breach the contract and should the
the Commission
consortium not make good this breach,
may, as a last resort and if all other approaches have been
explored, hold the participants liable under
the following
conditions:

(a)

independently of the appropriate action it shall take against
the defaulting participant, the Commission shall require the
remaining participants to implement the indirect action;

(b) should implementation be

impossible or

should the
remaining participants refuse to comply with subparagraph
(a),
the Commission may terminate the contract and
recover the Community financial contribution. When inves-
tigating the financial disadvantage, the Commission shall
take into account
the work already undertaken and
results obtained, thereby establishing the debt;

Where a participant is an international organisation, a public
body or a legal entity whose participation in the indirect action
is guaranteed by a Member State or an associated State, that
participant shall be solely responsible for its own debt and shall
not bear the debt of any other participant.

3.
Paragraph 2 shall not apply to indirect actions imple-
mented by means of instruments such as actions to promote
and develop human resources and mobility and, when duly
justified, specific support actions.

The coordinator shall keep accounts making it possible to
4.
determine at any time what proportion of the Community
funds has been allocated to each participant for the purposes
of the project. It shall communicate that information to the
Commission every year.

5. When several
legal entities are grouped in a common
legal entity acting as a sole participant in accordance with
Article 5(5), that legal entity shall take on the duties set out
in paragraphs 1 and 2. The liability of its members shall be
defined in accordance with the law under which this common
legal entity was established.

Article 14

Community financial contribution

and within the

In accordance with Annex III to the sixth framework
1.
programme
the Community
framework for State aid for research and development (1), the
Community financial contribution may take the following
forms:

limits of

(a)

for networks of excellence, it shall take the form of a fixed
grant for integration on the basis of the joint programme
of activities. The amount of that grant shall be calculated
taking into account the degree of integration, the number
of researchers that all participants intend to integrate, the
characteristics of the field of research concerned and the
shall be used to
activities.
joint programme of
complement the resources deployed by the participants in
order to carry out the joint programme of activities.

It

This grant shall be paid out on the basis of results,
following the ongoing execution of the joint programme
of activities, and on condition that its expenses, which are
to be certified by an external auditor, or in the case of
public bodies, a competent public officer, are greater than
the grant itself;

(c) as regards the part of the debt established in accordance
with point (b) that is owed by the defaulting participant,
the Commission shall distribute it among the remaining
participants, on the basis of each participant's share of
the
the expenses accepted and up to the amount of
Community financial
is
contribution each participant
entitled to receive.

(b) for some actions to promote human resources and mobility
and some specific support actions, except for the indirect
actions covered by Article 9(2)(b), it may take the form of a
lump sum payment;

(1) OJ C 45, 17.2.1996, p. 5.

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(c)

for integrated projects and the other instruments, except
those covered by points (a) and (b) and indirect
for
actions covered by Article 9(2)(b),
it shall take the form
of a grant to the budget, calculated as a percentage of the
budget established by the participants to carry out the
indirect action, adapted according to the type of activity
and taking into account
the cost model used by the
participant concerned.

The expenses needed to implement the indirect action have
to be certified by an external auditor or,
in the case of
public bodies, a competent public officer.

Eligible expenses shall be defined in accordance with the
the
subparagraph of Article 12(2) and must meet

2.
first
following conditions:

(a) they must be actual, economic and necessary for the

implementation of the indirect action;

(b) they must be determined in accordance with the usual

accounting principles of the individual participant;

(c) must be recorded in the accounts of the participants; or, in
the case of the resources of third parties referred to in the
last subparagraph of Article 8(2),
in the corresponding
financial documents of those third parties;

(d) they shall be exclusive of indirect taxes, duties and interest

and may not give rise to profit.

By way of derogation from the actual cost principle and with
the agreement of the participants, the contract may lay down
average rates of Community financial participation by type of
expenditure or pre-set lump sums, as well as a value by activity
which shall be approximate to the expenses envisaged.

In this case,

3.
Costs for management of the consortium shall be reim-
bursed up to 100 % of the costs incurred and shall include the
cost of audit certificates.
legal entities which
participate in the indirect action on an additional cost basis
may claim the full costs they have incurred for management, in
so far as they can produce detailed evidence of them. The
contracts
of
management costs in relation to the Community contribution.
A share of no more than 7 % shall be reserved for management
costs by the consortium.

down a maximum percentage

shall

lay

Article 15

Changes in consortium membership

The consortium must notify any change of its membership to
the Commission, which may object within six weeks of the
notification. New participants shall accede to the contract in
accordance with the terms of Article 12(2).

The joint programme of activities for a network of
2.
excellence or
the implementation plan for an integrated
project shall specify which changes in the membership of the
consortium shall require the prior publication of a competitive
call.

The consortium shall publish the competitive call and advertise
it widely using specific information support, particularly
Internet sites on the sixth framework programme, the specialist
press and brochures.

The consortium shall evaluate offers in the light of the criteria
which governed the evaluation and selection of the indirect
action, defined according to the terms of Article 10(4) and
(5), and with the assistance of independent experts appointed
by the consortium on the basis of the criteria described in
Article 11(2)(b).

Subsequent modification of the consortium shall follow the
of
procedure
paragraph 1.

subparagraph

established

in the

second

Article 16

Additional financial contribution

The Commission may increase the Community financial
contribution to an indirect action already under way in order
to expand its scope to cover new activities which may involve
new participants.

It shall do so in the case of the indirect actions referred to in
Articles 9(1) and 9(2)(c) by way of a call for supplementary
proposals, which the Commission shall publish and advertise in
accordance with Article 9(4) and which may be restricted, if
already under way. The
necessary,
Commission shall evaluate and select
in
accordance with Article 10.

such proposals

to indirect

actions

Article 17

Consortium activities in favour of third parties

If the contract provides for the consortium to undertake all or
some of its activities in favour of third parties, the consortium
shall ensure that this is properly made public, in accordance,
where applicable, with the contract.

1.
A consortium may modify its membership on its own
initiative and may in particular extend it to include any legal
entity contributing to the implementation of
the indirect
action.

The consortium shall evaluate and select any application
received from third parties in accordance with the principles
of transparency, fairness and impartiality and also with the
terms of the contract.

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Article 18

Scientific, technological and financial monitoring and
audits

The indirect actions to which the Community contributes
1.
shall be periodically evaluated by the Commission on the basis
of progress reports which will also cover the implementation
of
the use or dissemination of knowledge,
submitted by the participants in accordance with the terms
of the contract.

the plan for

the integrated
In monitoring the networks of excellence,
the
projects and, where necessary, other
Commission shall
experts
by
appointed in accordance with the provisions of Article 11(2).

indirect actions,
independent

assisted

be

The Commission shall ensure that all the information, which it
receives on pre-existing know-how and on knowledge expected
or acquired during the course of an indirect action, is treated
with confidentiality.

In accordance with the contract, the Commission shall
2.
the
take any useful steps to ensure that
the
indirect action are achieved with proper
interests of the Community. The Commission may,
financial
where necessary for the sake of
the
Community financial contribution or suspend the indirect
action if the terms of this Regulation or of the contract have
been infringed.

the objectives of
regard for

these interests, adjust

3.
The Commission, or any representative authorised by it,
shall have the right to carry out scientific, technological and
financial audits on the participants, in order to ensure that the
indirect action is being or has been performed under the
conditions claimed and in accordance with the terms of the
contract.

policies, unless
against doing so.

the participants provide a reasoned case

Under no circumstances shall such availability transfer any
rights or obligations of the Commission and the participants,
in terms of intellectual property rights, to Member States or
associated States receiving such information.

Unless such general
information becomes public or is made
available by the participants or has been communicated
without any confidentiality restrictions, Member States and
associated States shall comply with the Commission's obli-
gations on confidentiality as established by this Regulation.

Article 20

Protection of the financial interests of the Community

interests of

the financial

The Commission shall ensure that, when indirect actions are
implemented,
the Community are
protected by effective checks and by deterrent measures and,
if irregularities are detected, by penalties which are effective,
proportionate and dissuasive, in accordance with Council Regu-
lations (EC, Euratom) No 2988/95 and (EC, Euratom) No
2185/96 (1)
No
1074/1999 (2).

Regulation

(Euratom)

Council

and

CHAPTER III

SPECIFIC RULES FOR PARTICIPATION IN R&TD ACTIVITIES
UNDER THE PRIORITY THEMATIC AREA ‘FUSION ENERGY
RESEARCH’

Article 21

Scope

The rules set out in this Chapter apply to R&TD activities
under the priority thematic area ‘Fusion Energy Research’. In
the event of any conflict between the rules set out in this
Chapter and those set out in Chapters II and III, the rules set
out in this Chapter shall apply.

The contract shall specify the conditions under which the
participants may object to a technological audit of the use
the knowledge being carried out by
and dissemination of
certain authorised representatives of the Commission.

Article 22

Procedures

Pursuant to Article 160C of the Treaty, the Court of
the Community's financial

4.
Auditors may verify the use of
contribution.

R&TD activities under the priority thematic area ‘Fusion Energy
Research’ may be implemented on the basis of procedures set
out in the following frameworks:

(a) contracts of association with Member States, associated

States, or legal entities established in those States;

(b) the European Fusion Development Agreement (EFDA);

Article 19

Information made available to Member States and
associated States

The Commission shall make available to any Member State or
information on
associated State, upon request,
its useful
knowledge arising from work carried out
in an indirect
action provided that such information is relevant to public

(1) Council Regulation (Euratom, EC) No 2185/96 of 11 November
1996 concerning on-the-spot checks and inspections carried out
by the Commission in order to protect the European Communities'
financial interests against fraud and other irregularities (OJ L 292,
15.11.1996, p. 2).

(2) Council Regulation (Euratom) No 1074/1999 of 25 May 1999
concerning investigations conducted by the European Anti-Fraud
Office (OLAF) (OJ L 136, 31.5.1999, p. 8).

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(c) any other multilateral

agreement

concluded by

the

Community with associated legal entities;

(d) legal entities which may be set up after the consultative
committee for the fusion programme referred to in Article
6(2) of the specific programme (Euratom) for research and
training on nuclear energy has given its opinion;

(e) other contracts of

limited duration with non-associated
legal entities established in Member States or associated
States;

(f)

international agreements relating to cooperation with third
countries, or any legal entity which may be established by
such an agreement.

Article 23

Community financial contribution

1.
The contracts of association referred to in Article 22(a)
and contracts of limited duration referred to in Article 22(e)
shall establish the rules relating to the Community financial
contribution to the activities they cover.

The annual base rate for the Community financial contribution
shall not exceed 20 % over the duration of the sixth framework
programme.

2.
After consultation of the consultative committee for the
fusion programme referred to in Article 6(2) of the specific
programme (Euratom)
for research and training on nuclear
energy, the Commission may finance:

concentrate on actions of direct relevance to the Next
Step / ITER, except in the case of projects which have
already been awarded priority status during earlier
framework programmes;

(ii) expenditure for participation in specifically defined
projects enhancing the mutual cooperation between
associations, arising from contracts of association
referred to in Article 22, up to an annual ceiling in
Community support of EUR 100 000 per association;

(b) specifically defined multilateral activities carried out under
the European Fusion Development Agreement or by any
legal
including
procurements.

established for

this purpose,

entity

3.
In the case of projects and activities receiving a financial
contribution above the annual base rate referred to in the
the legal entities
second subparagraph of paragraph 1, all
referred to in Article 22(a), (b), (c), (d) and (e) shall have the
right
in the experiments carried out on the
equipment concerned.

to take part

The Community financial

contribution to activities
4.
carried out within the framework of an international coop-
eration agreement referred to in Article 22(f) shall be defined
in it or by any legal entity established by it.

The Community, together with legal entities associated in the
programme, may create any appropriate legal entity to manage
its participation and its financial contribution to such an
agreement.

(a) at a uniform rate not exceeding 40 %:

Article 24

(i) the capital related expenditure of specifically defined
projects to which priority status has been awarded by
status will
the

consultative

committee;

priority

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, 5 November 2002.

For the Council

The President

T. PEDERSEN