Regulation (EC) No 2321/2002 of the European Parliament and of the Council of 16 December 2002 concerning the rules for the participation of undertakings, research centres and universities in, and for the dissemination of research results for, the implementation of the European Community Sixth Framework Programme (2002-2006) (Text with EEA relevance)
Date: 2002-12-16
Institutions: Council of the European Union, European Parliament
Subjects: EU programme, dissemination of information, research body, research programme, research results, shareholding, type of business, university

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REGULATION (EC) No 2321/2002 OF THE EUROPEAN PARLIAMENT AND OF THE COUNCIL

of 16 December 2002

concerning the rules for the participation of undertakings, research centres and universities in, and
for the dissemination of research results for, the implementation of the European Community
Sixth Framework Programme (2002-2006)

(Text with EEA relevance)

THE EUROPEAN PARLIAMENT AND THE COUNCIL OF THE
EUROPEAN UNION,

Having regard to the Treaty establishing the European
Community, and in particular Article 167 and the second
paragraph of Article 172 thereof,

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

Having regard to the opinion of the Economic and Social
Committee (2),

Acting in accordance with the procedure referred to in Article
251 of the Treaty (3),

Whereas:

(1)

(2)

research,

contributing

demonstration activities,

the European
The Sixth Framework Programme of
technological development
Community for
and
to the
creation of the European Research Area and to inno-
vation (2002-2006) (‘the Sixth Framework Programme’),
was adopted by Decision No 1513/2002/EC of
the
European Parliament and of the Council (4). The rules
for financial participation by the Community, as set
out in Annex III to that Decision, need to be supple-
mented by other provisions.

the

and
in Annex

framework which takes

characteristics
III

full account of
of

Those provisions should fit into a coherent and trans-
parent
the
instruments
objectives
Sixth Framework
defined
Programme in order to guarantee the most efficient
implementation possible, taking into account the need
for
through simplified
procedures. This will especially be the case for small
(SMEs), owing to the
or medium-sized enterprises
participation of enterprise groupings.

easy access of participants

to the

(3)

The rules for the participation of undertakings, research
the
centres and universities should take account of
nature of the research and technological development

(1) OJ C 332 E, 27.11.2001, p. 275, OJ C 103 E, 30.4.2002, p. 266

and OJ C 262 E, 29.10.2002, p. 489.

(2) OJ C 94, 18.4.2002, p. 1.
(3) Opinion of

published in the Official
November 2002.

the European Parliament of 3 July 2002 (not yet
Journal), and Council Decision of 5

(4) OJ L 232, 29.8.2002, p. 1.

activities, including demonstration activities. They may,
moreover, vary depending on whether the participant is
based in a Member State, in an associated State, whether
a candidate country or not, or in a third country, and on
is a national
its legal structure, namely whether
of
organisation,
European interest or not,
European
Economic Interest Grouping, or an association formed
by participants.

organisation,
a

international
a

SME,

an

it

(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 inter-
national
enshrined in
cooperation, particularly
Articles 164 and 170 of the Treaty.

as

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 in the Sixth Framework
Programme.

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 therefrom.

The rules governing the dissemination of research results
should promote the protection of intellectual property
and the use and dissemination of those results. They
should ensure that participants have mutual access to
pre-existing know-how and to knowledge arising from
research work to the extent necessary to conduct the
research work or to use the resulting knowledge. At
the same time, they should guarantee the protection of
the participants' intellectual assets. They should also take
account of the features of the integrated projects and
networks of excellence, in particular by offering a high
degree of
flexibility to the participants, and allowing
them to agree among themselves on the most suitable
arrangements for their collaboration and for the exploi-
tation of the resulting knowledge. These agreements may
form part of a consortium agreement.

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(9)

Activities under the Sixth Framework Programme should
be conducted in compliance with ethical principles,
including those reflected in the Charter of Fundamental
Rights of the European Union, and should strive both to
increase the role of women in research and to improve
information for, and dialogue with, society, as well as
promote participation from the outermost regions of the
Community,

HAVE ADOPTED THIS REGULATION:

CHAPTER I

INTRODUCTORY PROVISIONS

Article 1

Subject

This Regulation establishes rules for the participation of enter-
prises, research centres and universities in, and rules for the
dissemination of results from research carried out under the
Sixth Framework Programme of the European Community for,
demonstration
research,
the European
activities
(hereinafter
Research Area and to innovation (2002-2006)
referred to as the ‘Sixth Framework Programme’), with the
exception of RTD activities executed by a joint undertaking
or any other structure set up pursuant to Article 171 of the
Treaty.

technological
contributing to the

and
creation of

development

Article 2

Definitions

For the purposes of this Regulation:

1.

‘RTD activity’ means one of the research and technological
development activities, including demonstration activities,
described in Annexes I and III to the Sixth Framework
Programme;

2.

‘direct action’ means an RTD activity undertaken by the
Joint Research Centre (hereinafter referred to as the JRC) in
the execution of the tasks assigned to it under the Sixth
Framework Programme;

3.

‘indirect action’ means an RTD activity undertaken by one
or more participants by means of an instrument of the
Sixth Framework Programme;

4.

the mechanisms

‘instruments’ means
indirect
Community intervention as laid down in Annex III to
the Sixth Framework Programme, with the exception of
Community financial participation pursuant to Article 169
of the Treaty;

for

5.

6.

7.

8.

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

‘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
law,
lishment, under Community law, or international
having legal personality and being entitled to have rights
and obligations of any kind in its own name;

law of

9.

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

10.

11.

12.

the

by
‘coordinator’ means
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

‘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;

organisation,

‘international European interest organisation’ means an
of whose
international
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 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;

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16.

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

26.

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

actions
the
required for

17.

‘small and medium-sized enterprises’ (hereinafter referred
to as SMEs) means enterprises which meet the criteria set
out in Commission Recommendation 96/280/EC (2);

27.

‘access rights’ means licences and rights to use knowledge
or pre-existing know-how;

18.

‘enterprise grouping’ means any legal entity made up for
the most part of SMEs and representing their interests;

19.

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

28.

‘legitimate interest’ means a participant's interest of any
kind, particularly a commercial
that may be
claimed in the cases specified in this Regulation; to this
end, the participant must prove that failure, in any given
instance, to take account of his interest would result in
him suffering disproportionately great harm;

interest,

20.

‘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;

21.

22.

‘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
rights
following
such
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;

23.

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

24.

‘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;

25.

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

implementation of

the

a

(1) OJ L 199, 31.7.1985, p. 1.
(2) OJ L 107, 30.4.1996, p. 4.

29.

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

30.

‘industrial States’ means those third countries that are
members of G7;

31.

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

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.

Direct or indirect holding of more than 50 % of the
2.
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.

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

3.
public body shall not
relationship between them.

CHAPTER II

PARTICIPATION IN INDIRECT ACTIONS

Article 4

General principles

1.
Any legal entity participating in an indirect action may
receive a Community financial contribution subject to Articles
6 and 7.

Any legal entity established in an associated State may
2.
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 Article 5.

3.
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.

4.
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.

An EEIG or any legal entity established in a Member State
4.
or associated State according to its national law and which is
made up of independent legal entities meeting the criteria of
this Regulation may be the sole participant
in an indirect
action, provided that its composition is in accordance with
the conditions fixed pursuant to the provisions of paragraphs
1 and 2.

Article 6

Participation by legal entities from third countries

Over and above the minimum number of participants
1.
fixed in accordance with Article 5, any legal entity established
in a third country may participate in RTD activities provided
for under the heading ‘Focussing and Integrating Community
Research’ of
the Sixth Framework Programme. Detailed
in the
provisions
relevant work programme. The involvement of participants
from Industrial States may be subject to arrangements of a
reciprocal nature, which could take the form of a scientific
and technological agreement.

this participation may be set out

for

Any legal entity established in a third country targeted by the
specific international cooperation activities provided under the
heading ‘Focussing and Integrating Community Research’ of the
Sixth Framework Programme may receive a Community
financial
the budget
allocated in Annex II to the Sixth Framework Programme for
the action referred to in Article 164(b) of the Treaty.

contribution within the

limits of

the
The work programmes may specify and restrict
5.
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.

Any legal entity established in a third country other than a
country covered by the second subparagraph, and taking part
in the RTD activities referred to in the first subparagraph, may
receive a Community financial contribution if provision is
made for this purpose under an RTD activity or if
is
essential for carrying out the indirect action.

it

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 RTD activity.

shall

Subject

to paragraph 3,

the minimum number of
2.
participants established by the work programmes shall not be
fewer than three independent legal entities established in three
different Member States or associated States, of which at least
two shall be Member States or associated candidate countries.

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.

2.
Any legal entity established in a third country which has
concluded a scientific and technological cooperation agreement
with the Community may take part in RTD activities other
than those covered by paragraph 1, over and above the
minimum number of participants fixed pursuant to Article 5,
in accordance with the conditions stipulated in that agreement.

It may receive a Community financial contribution if provision
is made for this under an RTD activity or if it is essential for
carrying out the indirect action.

Any legal entity established in a third country other than
3.
those covered by paragraph 2 may take part in RTD activities
other than those covered by paragraph 1, over and above the
minimum number of participants fixed in accordance with
Article 5, if such participation is provided for under an RTD
activity or if it is necessary for carrying out the indirect action.

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It may receive a Community financial contribution if provision
is made for this under an RTD activity or if it is essential for
carrying out the indirect action.

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

identified in the work programmes;

Article 7

Participation by international organisations

than international
international organisation other
Any
European interest organisations may take part
in the RTD
activities referred to in Article 6(1), subject to the conditions
set out in the first and third subparagraphs thereof, and in
in
other RTD activities subject
paragraphs 2 and 3 of that Article.

to the conditions set out

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

of

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

programmes,

for which

specific

Conditions relating to technical competence and resources

Article 8

(d) specific support actions covered by Article 11.

Participants

1.
competence needed to carry out the indirect action.

shall have the knowledge and technical

At

the

time when they present

2.
their proposal,
participants shall have at least the potential resources needed
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 resources needed to carry out
the indirect action are
understood to be human resources,
infrastructure,
financial
intangible property and other
resources and,
resources made available by a third party on the basis of a
prior commitment.

if necessary,

Article 9

Submission of proposals for indirect actions

Proposals for indirect actions shall be submitted under
1.
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
in the
shall be requested to submit a complete proposal
second stage.

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
evaluation and selection of
the
Commission regarding
proposals for indirect actions.

that may be

4.
Calls for expressions of interest and calls for proposals
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,
Framework Programme and through specific
information
channels such as the national contact points set up by the
Member States and the associated States.

Journal of

Article 10

Evaluation and selection of proposals for indirect actions

1.
The proposals for indirect actions covered by Article 9(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 competences and including the organisa-
tional arrangements laid down by the participants;

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

2.

Paragraph 1 shall not apply to:

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

and contribution to Community policies;

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(e) quality of

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

excluded from the evaluation and selection procedures at any
time.

In applying paragraph 1(d), the following criteria shall

2.
also be taken into account:

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.

(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:

(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;

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

Calls for proposals shall determine,

4.
in accordance with
the type of instruments deployed or the objectives of the RTD
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
specified or complemented in the work programme,
in
the
particular
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

5.
for an indirect action which contravenes
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

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.
the evaluation results and having regard to the
basis of
Community funds available. The Commission shall adopt and
publish guidelines setting out detailed provisions for evaluation
and selection procedures.

Article 11

Appointment of independent experts

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

referred to in Article 10(6) and the

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 Sixth
the evaluations provided for in Article 6 of
Framework Programme and its specific programmes shall
be very high-ranking individuals from the fields of science,
industry or politics with significant experience in research,
research policy or research programme management at
national or international level.

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(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.

Article 12

Contracts and consortium agreements

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.

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.

2.
The contract shall establish the rights and obligations of
all 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
the
of
its objectives, changes in consortium membership,
payment of
if
applicable, conditions for the eligibility of any necessary expen-
diture, as well as rules for dissemination and use.

the Community financial contribution and,

contract, which shall be

concluded between the
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).

4.
The conclusion of a contract shall not affect the right of
the Commission to adopt a recovery decision, enforceable in
accordance with Article 256 of the Treaty, to obtain reim-
bursement of an amount due from a participant. Before
adopting a decision of this kind, the Commission shall ask
for
the participant's comments to be submitted before a
specified date.

Participants

5.
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.

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

Article 13

Execution of indirect actions

1.
The consortium shall implement the indirect action and
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

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

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shall

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

legal entities are grouped in a common
5. When several
legal entity acting as a sole participant in accordance with
Article 5(4), that legal entity shall take on the duties set out
in paragraphs 1, 2(a) and 2(b) of this Article. The liability of its
members shall be defined in accordance with the law under
which this common legal entity was established.

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 his share of the project up to
a maximum of the total payments he has received.

Should a participant breach the contract and should the
consortium not make good this breach,
the Commission
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
the work already undertaken and
take into account
results obtained, thereby establishing the debt.

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

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.

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

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

communicate

shall

that

It

Article 14

Community financial contribution

and within the

1.
In accordance with Annex III to the Sixth Framework
the Community
Programme,
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
joint programme of
shall be used to
activities.
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.

(b) For

some actions

mobility and some specific support actions, except
the indirect actions covered by Article 9(2)(b),
take the form of a lump-sum payment.

to promote human resources and
for
it may

(c) For integrated projects and the other instruments, except
for those covered by points (a) and (b) and indirect 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 shall be
certified by an external auditor or, in the case of public bodies,
a competent public officer.

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

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

2.
first
following conditions:

sites on the Sixth Framework Programme,

the
Internet
specialist press and brochures, and the national contact
points set up by the Member States and associated States for
information and support.

(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) they must be recorded in the accounts of the participants
or, in the case of the resources of third parties referred to
in the corre-
in the third subparagraph of Article 8(2),
sponding 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 approximate to the expenses envisaged.

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
procedure established in the third subparagraph of paragraph
1.

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.

Costs for management of the consortium shall be reim-
3.
bursed up to 100 % of the costs incurred and shall include the
cost of audit certificates.
In this case 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

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 15

Article 17

Changes in consortium membership

Consortium activities in favour of third parties

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.

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.

A participant's withdrawal shall not affect access rights under
Articles 26(2) and 27(2).

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

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.

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 shall 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

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

assisted

the integrated
the
experts

indirect actions,
independent

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.

2.
In accordance with the contract, the Commission shall
take any useful steps to ensure that
the
indirect action are achieved with proper
the
financial
interests of the Community. The Commission may,
the
where necessary for the sake of
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.

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.

Pursuant to Article 248(2) of the Treaty, the Court of
the Community's financial

4.
Auditors may verify the use of
contribution.

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
policies, unless
the participants provide a reasoned case
against doing so.

Under no circumstances, shall such availability transfer any
rights or obligations of the Commission and the participants,
as set out in Articles 21 to 28, to Member States or associated
States receiving such information.

information becomes public or is made
Unless such general
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 (Euratom, EC) No
2185/96 (1), and with Regulation (EC) No 1073/1999 of the
European Parliament and of the Council (2).

CHAPTER III

RULES FOR DISSEMINATION AND USE

Article 21

Ownership of knowledge

Knowledge arising from work carried out under direct

1.
actions shall be the property of the Community.

Knowledge arising from work carried out under indirect
2.
actions provided for in Article 9(2)(b) and (d) shall be the
property of the Community. Knowledge arising from work
carried out under other indirect actions shall be the property
of
the work leading to that
knowledge.

the participants carrying out

3. Where several participants have jointly carried out work
generating the knowledge referred to in paragraph 2 and where
their respective share of the work cannot be ascertained, they
shall have joint ownership of such knowledge. They shall agree
among themselves on the allocation and the terms of exer-
cising the ownership of the knowledge in accordance with
the provisions of this Regulation and of the contract.

Knowledge arising from work carried out under coop-
4.
shall be the joint
erative or collective research projects
property of
the SMEs or the enterprise groupings, which
shall agree on the allocation and the terms of exercising the
ownership of the knowledge in particular in the consortium
agreement in accordance with the provisions of this Regulation
and of the contract.

(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) Regulation (EC) No 1073/1999 of the European Parliament and of
the Council of 25 May 1999 concerning investigations conducted
by the European Anti-Fraud Office (OLAF) (OJ L 136, 31.5.1999,
p. 1).

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If personnel employed by a participant are entitled to
5.
claim rights to knowledge, the participant shall take steps or
reach appropriate agreements to ensure that these rights can be
exercised in a manner compatible with its obligations under
this Regulation and the contract.

6. Where a participant transfers ownership of knowledge, it
shall take steps or conclude agreements to pass on its obli-
gations, in particular concerning the granting of access rights,
the dissemination and use of the knowledge, under this Regu-
to the assignee. As long as the
lation and the contract,
participant
it shall give
is required to grant access rights,
prior notice to the Commission and the other participants in
the same indirect action of the envisaged assignment and the
assignee.

The Commission or other participants in the indirect action
may object within 30 days of notification to such a transfer of
ownership. The Commission may object to any transfer of
in particular to those not estab-
ownership to third parties,
if such a
lished in a Member State or an associated State,
transfer is not in accordance with the interests of developing
the
knowledge-based
the
European economy, or is inconsistent with ethical principles.
The other participants may object to any transfer of ownership
if this would adversely affect their access rights.

competitiveness

dynamic,

of

protection of
affected.

their knowledge could thereby be adversely

Article 23

Use and dissemination of knowledge

1.
The participants and the Community shall use or cause to
be used the knowledge which they own arising from the direct
actions or indirect actions, in accordance with the interests of
the participants concerned. The participants shall set out the
terms of use in a detailed and verifiable manner, in accordance
with this Regulation and the contract.

If dissemination of

2.
the knowledge does not adversely
affect its protection or use, the participants shall ensure that
is disseminated within a period laid down by the
it
the
Community. Should the participants
Commission may disseminate
Particular
account shall be taken of the following factors:

fail
the knowledge.

to do so,

(a) the need to safeguard intellectual property rights;

(b) the benefits of swift dissemination, for example in order to
avoid duplication of research efforts and to create synergies
between indirect actions;

Article 22

Protection of knowledge

(c) confidentiality;

its owner shall provide for
protection in conformity with

1. Where knowledge is capable of industrial or commercial
its adequate and
application,
effective
legal
provisions, the contract and the consortium agreement, and
having due regard to the legitimate interests of the participants
concerned.

relevant

(d) the legitimate interests of the participants.

Article 24

Making available knowledge arising from direct actions

2. Where the Commission considers it necessary to protect
knowledge in a particular country, and where such protection
has not been applied for or has been waived, the Commission
may, with the agreement of the participant concerned, adopt
protective measures. In this event, and as far as that particular
country is concerned, the Community shall take on the obli-
gations regarding the granting of access rights in the place of
the participant. The participant may only refuse if
it can
demonstrate that its legitimate interests will be significantly
impaired.

3.
A participant may publish or allow the publication, on
whatever medium, of data concerning knowledge it owns or
knowledge obtained during work in connection with coop-
erative or collective research projects, provided that this does
not affect the protection of that knowledge. The Commission
and the other participants in the same indirect action shall be
given prior written notice of any planned publication. A copy
of such data shall on request be made available to them within
30 days of
the request. The Commission and the other
participants may object to the publication within a period of
if they consider that the
30 days from receipt of the data,

Knowledge arising from work carried out under direct actions
may be made available to one or more interested legal entities,
in particular to those established in a Member State or an
Associated State, provided that
entities
undertake to use the knowledge or to ensure that it is used.
Such availability of knowledge shall be subject to appropriate
conditions to be laid down and published by the Commission,
in particular concerning the payment of fees.

said legal

the

Article 25

Principles for access rights in indirect actions

1.
Access rights in accordance with Articles 26 and 27 shall
be granted on written request. The granting of access rights
specific
may be made conditional on the conclusion of
agreements, aimed at ensuring that they are used only for
the intended purpose, and the giving of appropriate under-
takings as to confidentiality. Participants may also conclude
in particular, of granting
agreements with the purpose,
additional or more favourable access rights,
including access
rights to third parties,
in particular to enterprises associated
with participants, or specifying the requirements applicable to
access rights, but not restricting the latter. Such agreements
shall comply with the applicable competition rules.

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The Commission may object to any grant of access rights to
third parties, in particular to those not established in a Member
State or an Associated State,
in
accordance with the interests of developing the competitiveness
of the dynamic, knowledge-based European economy, or is
inconsistent with ethical principles.

if such a grant

is not

2.
Access rights to pre-existing know-how shall be granted
provided that the participant concerned is free to grant them.

3.
A participant may explicitly exclude specific pre-existing
know-how from the obligation to grant access rights by means
of a written agreement between the participants, before the
participant concerned signs the contract or before a new
joins the indirect action. The other participants
participant
may only withhold their agreement if they demonstrate that
implementation of
legitimate
interests will be significantly impaired thereby.

the indirect action or

their

Except where the participant granting access rights so
to grant

shall confer no entitlement

such rights

4.
agrees,
sub-licences.

Article 27

Access rights for use

1.
Participants in the same indirect action shall enjoy access
rights to the knowledge arising from work carried out under
the indirect action and to the pre-existing know-how, if that
knowledge or pre-existing know-how is needed to use their
own knowledge. Access rights to knowledge shall be granted
on a royalty-free basis, unless otherwise agreed, before
signature of
to pre-existing
know-how shall be granted under fair and non-discriminatory
conditions.

contract. Access

rights

the

Subject

to the participants'

legitimate interests, access
2.
rights may be requested under the conditions laid down in
paragraph 1 until
the indirect
action or after
the participation of a
participant, whichever falls earlier, unless there is provision
for a longer period.

two years after the end of

the termination of

Article 28

Article 26

Incompatible or restrictive commitments

Access rights for the execution of indirect actions

1.
Participants in the same indirect action shall enjoy access
rights to the knowledge arising from work carried out under
the indirect action and to the pre-existing know-how, if that
knowledge or pre-existing know-how is needed to carry out
their own work under that indirect action. Access rights to
knowledge shall be granted on a royalty-free basis. Access
rights to pre-existing know-how shall also be granted on a
royalty-free basis, unless otherwise agreed, before signature of
the contract.

2.
Subject to its legitimate interests, the termination of the
participation of a participant shall in no way affect the obli-
gation to grant access rights pursuant to paragraph 1 to the
other participants in the same indirect action until its end.

Participants shall make no commitments incompatible

1.
with the obligations provided for in this Regulation.

2.
Participants in the same indirect action shall be informed
as soon as possible by the participant required to grant access
rights of any limitations to the granting of access rights to
pre-existing know-how, of any obligations to grant rights to
knowledge, or of any restriction which might substantially
affect the granting of access rights, as the case may be.

Article 29

into force on the third day
This Regulation shall enter
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, 16 December 2002.

For the European Parliament

The President

P. COX

For the Council

The President

M. FISCHER BOEL