Council Regulation (EC) No 72/2008 of 20 December 2007 setting up the ENIAC Joint Undertaking
Date: 2007-12-20
Institutions: Council of the European Union
Subjects: EU programme, joint venture, legal status, nanotechnology, new technology, public-private partnership, research programme

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COUNCIL REGULATION (EC) No 72/2008

of 20 December 2007

setting up the ENIAC Joint Undertaking

THE COUNCIL OF THE EUROPEAN UNION,

(4)

Having regard to the Treaty establishing the European Commu-
nity, and in particular Article 171 and 172 thereof,

Having regard to the proposal from the Commission,

Having regard to the opinion of the European Parliament (1),

In its conclusions of 25 and 26 November 2004, the
Council encouraged the Commission to further elaborate
the concepts of Technology Platforms and JTIs. It under-
lined that such initiatives could contribute to coordinating
overall Community research efforts with a view to
achieving synergies with the activities of existing schemes
important
such as Eureka taking into account
their
contribution to Research and Development
(hereinafter
referred to as R & D).

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

(5)

Whereas:

(1) Decision No 1982/2006/EC of the European Parliament
and of the Council of 18 December 2006 concerning the
Seventh Framework Programme of the European Commu-
nity for research, technological development and demon-
stration activities (2007-2013) (3) (hereinafter referred to as
for a
the Seventh Framework Programme), provides
long
Community contribution for the establishment of
term public-private partnerships in the form of
Joint
Technology Initiatives (hereinafter referred to as JTIs) which
could be implemented through Joint Undertakings within
the meaning of Article 171 of the Treaty. These JTIs stem
from the work of European Technology Platforms, already
set up under the Sixth Framework Programme, and cover
selected aspects of research in their field. They should
combine private-sector investment and European public
funding, including funding from the Seventh Framework
Programme.

(2) Council Decision 2006/971/EC of 19 December 2006
imple-
concerning the specific programme ‘Cooperation’
menting the Seventh Framework Programme of
the
European Community for research, technological develop-
ment and demonstration activities (2007 to 2013) (4)
underlines the need for ambitious pan-European public-
private partnerships to speed up the development of major
technologies by large research actions at Community level
including, in particular, JTIs.

(3)

The Lisbon Growth and Jobs Agenda underscores the need
to develop favourable conditions for investment in knowl-
edge and innovation in the Community to boost competi-
tiveness, growth and jobs.

(1) Opinion of 12 December 2007 (not yet published in the Official

Journal).

(2) Opinion of 25 October 2007 (not yet published in the Official

Journal).

(3) OJ L 412, 30.12.2006, p. 1.
(4) OJ L 400, 30.12.2006, p. 86, corrected by OJ L 54, 22.2.2007, p. 30.

(6)

(7)

(8)

European companies and other R & D organisations active
in the field of nanoelectronics took the lead in establishing
the European Technology Platform on Nanoelectronics
(hereinafter referred to as the ENIAC Technology Platform)
the Sixth Framework Programme. The ENIAC
under
Technology Platform developed a Strategic Research
Agenda based on an extensive consultation with public
and private stakeholders. The Strategic Research Agenda
identified the priorities in the nanoelectronics domain and
recommended directions for a JTI in this field.

The JTI on nanoelectronics responds to the Commission
Communications of 6 April 2005 on ‘Building the ERA of
knowledge for growth’ and of 20 July 2005 on ‘Common
Actions for Growth and Employment: The Community
for a new and more
Lisbon Programme’, which call
ambitious approach to large-scale public-private partner-
ships in fields of major interest for European competitive-
ness identified through dialogue with industry.

The JTI on nanoelectronics responds to the need for
support for pervasive Information and Communication
Technologies as identified in the report
‘Creating an
January 2006. This report also
Innovative Europe’ of
commends
for
combining national and Community funding within a
clear legal structure and in a harmonised and synchronous
manner.

the ENIAC Joint Technology model

The JTI on nanoelectronics should create a sustainable
public-private partnership and increase and leverage private
and public investment in the sector of nanoelectronics in
Europe, which for the purpose of this Regulation includes
the Member States of the European Union (hereinafter
referred to as Member States) and countries associated with
the Seventh Framework Programme (hereinafter referred to
as the associated countries). The JTI on nanoelectronics
should also achieve effective coordination and synergy of
resources and funding from the Framework Programme,

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industry, national R & D programmes and intergovern-
mental R & D schemes, thus contributing to strengthening
Europe's future growth, competitiveness and sustainable
development. Finally,
its objective should be to foster
collaboration between all stakeholders such as industry,
including small and medium-sized enterprises (SMEs),
national authorities, academic and research centres pulling
together and focusing the research effort.

(13) The objectives of the ENIAC Joint Undertaking should be
pursued by pooling resources from the public and private
sectors to support R & D activities in the form of projects.
To that end, the ENIAC Joint Undertaking should be able to
organise competitive calls for proposals for projects to
implement parts of the Research Agenda. The R & D
activities should respect
fundamental ethical principles
applicable in the Seventh Framework Programme.

(9)

The JTI on nanoelectronics should define a commonly
agreed research agenda (hereinafter referred to as the
Research Agenda), closely following the recommendations
of the Strategic Research Agenda developed by the ENIAC
Technology Platform. This Research Agenda should identify
and regularly review research priorities for the development
and adoption of key competences for nanoelectronics
across different application areas in order to strengthen
European competitiveness and allow the emergence of new
markets and societal applications.

functionalities.

(10) The JTI on nanoelectronics should address two objectives
which are a substantial part of
the Strategic Research
Agenda of the ENIAC Technology Platform: enhancing the
further integration and miniaturisation of devices, and
increasing their
should deliver new
materials, equipment and processes, new architectures,
innovative manufacturing processes, disruptive design
and new packaging and ‘systemising’
methodologies
methods.
It should drive and be driven by innovative
high-tech applications in the area of communication and
computing, transport, health care and wellness, energy and
security and safety, and
environmental management,
entertainment.

It

(11) The ambition and scope of the stated objectives of the JTI
on nanoelectronics, the scale of the financial and technical
resources that need to be mobilised, and the need to achieve
resources and
effective coordination and synergy of
funding, call for action to be taken by the Community.
Therefore,
it is necessary to set up a Joint Undertaking
(hereinafter referred to as the ENIAC Joint Undertaking)
under Article 171 of the Treaty as a legal entity responsible
for the implementation of the JTI on nanoelectronics. To
ensure the appropriate management of R & D activities
initiated under the Seventh Framework Programme, the
ENIAC Joint Undertaking should be set up for a period up
to 31 December 2017.

(14) The ENIAC Joint Undertaking will ensure and promote a
safe, integrated, and responsible approach to nanoelectro-
nics in keeping with the high safety standards already
established in the nanoelectronics industry and in accor-
dance with public health,
safety, environmental and
consumer Community policies and the European Action
‘Nanosciences and nanotechnologies: An action plan for
Europe 2005-2009’.

(15) The founding members of the ENIAC Joint Undertaking
should be the Community, Belgium, Germany, Estonia,
Ireland, Greece, Spain, France,
the Netherlands,
Poland, Portugal, Sweden,
the United Kingdom, and
AENEAS, an association representing companies and other
R & D organisations active in the field of nanoelectronics in
Europe. The ENIAC Joint Undertaking should be open to
new members.

Italy,

(16) The rules for the organisation and operation of the ENIAC
Joint Undertaking should be laid down in the statutes of the
ENIAC Joint Undertaking as part of this Regulation.

(17) A letter of commitment to contribute to the establishment
and implementation of the ENIAC Joint Undertaking has
been signed by AENEAS.

(18) The projects should be supported both by the Community's
and ENIAC Member States' financial contribution as well as
by contributions in kind from the R & D organisations
participating in the projects of the ENIAC Joint Under-
taking. Further financing options may be available, inter
alia, from the European Investment Bank (EIB), in particular
through the Risk-Sharing Finance Facility developed jointly
with the EIB and the Commission pursuant to Annex III of
Decision 2006/971/EC.

(12) The ENIAC Joint Undertaking should be a body set up by
the Community and discharge for the implementation of its
budget should be given by the European Parliament, on the
recommendation of the Council. However, account should
be taken of the specificities resulting from the nature of JTIs
as public-private partnerships and in particular from the
private sector contribution to the budget.

(19) Public funding for the R & D activities following open and
competitive calls for proposals published by the ENIAC
Joint Undertaking should consist of national
financial
contributions from the ENIAC Member States and a
financial contribution from the ENIAC Joint Undertaking.
The financial contribution of the ENIAC Joint Undertaking
should be provided at a percentage of the R & D costs

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incurred by participants in projects. This percentage should
be equal for all participants in projects in any given call for
proposals.

(20) Over the duration of the ENIAC Joint Undertaking, the
R & D organisations participating in projects should
provide resources that equal or exceed the total public
funding for the R & D activities.

(21) Since there is a need to ensure stable employment
conditions and equal treatment of staff, and in order to
attract specialised scientific and technical staff of the highest
calibre, the Staff Regulations of Officials and the Conditions
of Employment of Other Servants of
the European
laid down in Council Regulation (EEC,
Communities,
Euratom, ECSC) No 259/68 (1) should be applied to all
staff recruited by the ENIAC Joint Undertaking.

(22) As a body endowed with legal personality, the ENIAC Joint
Undertaking should be accountable for its actions. Where
relevant,
to
resolve any disputes arising from the activities of the Joint
Undertaking.

Justice should be competent

the Court of

(23) The Commission should regularly report on the progress by
the ENIAC Joint Undertaking to the European Parliament
and the Council.

(24) The ENIAC Joint Undertaking should adopt, in accordance
with Council Regulation (EC, Euratom) No 1605/2002 of
25 June 2002 on the Financial Regulation applicable to the
general budget of the European Communities (2) (herein-
after referred to as the Financial Regulation) and subject to
prior consent from the Commission, specific financial rules
which take into account its specific operating needs arising,
in particular, from the need to combine Community and
national funding to support R & D activities in an efficient
and timely manner.
In order to ensure a harmonised
treatment between the participants of the ENIAC Joint
Undertaking research activities and those of the indirect
actions of
is
appropriate that value added tax should not be an eligible
cost for Community funding, in line with Regulation (EC)
No 1906/2006 of the European Parliament and of the
Council of 18 December 2006 laying down the rules for
the participation of undertakings, research centres and
universities
the Seventh Framework
Programme and for the dissemination of research results
(2007-2013) (3).

the Seventh Framework Programme,

in actions under

it

(1) OJ L 56, 4.3.1968, p. 1. Regulation as amended by Regulation (EC,

Euratom) No 337/2007 (OJ L 90, 30.3.2007, p. 1).

(2) OJ L 248, 16.9.2002, p. 1. Regulation as last amended by Regulation
(EC, Euratom) No 1995/2006 (OJ L 390, 30.12.2006, p. 1).

(3) OJ L 391, 30.12.2006, p. 1.

(25) Appropriate measures should be taken to prevent irregu-
larities and fraud, and the necessary steps should be taken
to recover funds lost, wrongly paid or incorrectly used in
accordance with Council Regulation (EC, Euratom)
No 2988/95 of 18 December 1995 on the protection of
the European Communities financial interests (4), 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 (5), and Regulation (EC) No 1073/
1999 of 25 May 1999 of the European Parliament and of
the Council concerning investigations concluded by the
European Anti-Fraud Office (OLAF) (6).

(26) The Intellectual Property Rights Policy of the ENIAC Joint
Undertaking should promote knowledge creation and
exploitation.

(27)

In order to facilitate the setting up of the ENIAC Joint
Undertaking, the Commission should be responsible for the
establishment and initial operation of the ENIAC Joint
Undertaking until
the operational capacity to
it has
implement its own budget.

the great

(28) Since the objective of this Regulation, namely the establish-
cannot be
the ENIAC Joint Undertaking,
ment of
sufficiently achieved by the Member States due to the
trans-national nature of
research challenges
identified, which requires the pooling of complementary
knowledge and financial resources across the sectors and
borders and can therefore be better achieved at Community
level, the Community may adopt measures, in accordance
with the principle of subsidiarity as set out in Article 5 of
the Treaty. In accordance with the principle of proportion-
ality, as set out in that Article, this Regulation does not go
beyond what is necessary in order to achieve that objective,

HAS ADOPTED THIS REGULATION:

Article 1

Establishment of a Joint Undertaking

1.
For the implementation of the Joint Technology Initiative
(hereinafter JTI) on nanoelectronics, a Joint Undertaking within
the meaning of Article 171 of the Treaty (hereinafter the ENIAC
Joint Undertaking)
is hereby set up for a period up to
31 December 2017.

(4) OJ L 312, 23.12.1995, p. 1.
(5) OJ L 292, 15.11.1996, p. 2.
(6) OJ L 136, 31.5.1999, p. 1.

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2. The seat of the ENIAC Joint Undertaking shall be located in
Brussels, Belgium.

Article 5

Community contribution

Article 2

Objectives

The ENIAC Joint Undertaking shall contribute to the implemen-
tation of the Seventh Framework Programme and the theme
‘Information and Communication Technologies’ of the Specific
Programme ‘Cooperation’. It shall, in particular:

(a)

(b)

(c)

(d)

define and implement a Research Agenda for the develop-
ment of key competences
for nanoelectronics across
different application areas in order to strengthen European
competitiveness and sustainability and allow for
the
emergence of new markets and societal applications;

support the activities required for the implementation of
the Research Agenda (hereinafter R & D activities), notably
by awarding funding to participants in selected projects
following competitive calls for proposals;

promote a public-private partnership aiming at mobilising
and pooling Community, national and private efforts,
increasing overall R & D investments in the field of
nanoelectronics, and fostering collaboration between the
public and private sectors;

achieve synergy and coordination of European R & D
efforts in the field of nanoelectronics including, when
added value can be created, the progressive integration into
the ENIAC Joint Undertaking of the related activities in this
field currently implemented through intergovernmental
R & D schemes (Eureka);

(e)

promote the involvement of SMEs in its activities in line
with the objectives of the Seventh Framework Programme.

Article 3

Legal status

The ENIAC Joint Undertaking shall be a Community body and
shall have legal personality. In each of the Member States, it shall
enjoy the most extensive legal capacity accorded to legal persons
under the laws of those States. It may, in particular, acquire or
dispose of movable and immovable property and may be a party
to legal proceedings.

Article 4

Statutes

The statutes of the ENIAC Joint Undertaking, as set out in the
Annex hereto, constitute an integral part of this Regulation and
are hereby adopted.

1. The maximum Community contribution to the ENIAC Joint
Undertaking covering running costs and R & D activities shall be
EUR 450 million paid from the appropriations in the general
budget of
theme
‘Information and Communication Technologies’ of the Specific
Programme ‘Cooperation’.

the European Union allocated to the

2. The arrangements for the Community financial contribution
shall be established by means of a general agreement and annual
financial agreements to be concluded between the Commission,
on behalf of the Community, and the ENIAC Joint Undertaking.

3. The Community contribution to the ENIAC Joint Under-
taking used to fund projects shall be allocated following open
and competitive calls for proposals.

Article 6

Financial rules

in accordance with Article 185(1) of

1. The ENIAC Joint Undertaking shall adopt specific financial
rules
the Financial
Regulation. They may depart
from the rules laid down in
Commission Regulation (EC, Euratom) No 2343/2002 (1) on the
framework Financial Regulation for the bodies referred to in
Article 185 of
the Financial Regulation where the specific
operating needs of the ENIAC Joint Undertaking so require and
subject to prior consent from the Commission.

2. The ENIAC Joint Undertaking shall have its own internal
audit capability.

Article 7

Staff

1. The Staff Regulations of Officials of the European Commu-
nities, the Conditions of Employment of Other Servants of the
European Communities and the rules adopted jointly by the
institutions of the European Communities for the purpose of
applying these Staff Regulations and Conditions of Employment
shall apply to the staff of the ENIAC Joint Undertaking and its
executive director.

2. Without prejudice to paragraph 3 of
this Article and
Article 7(2) of the statutes, the ENIAC Joint Undertaking shall
exercise the powers conferred on the appointing authority by the
Staff Regulations of Officials of the European Communities and
on the authority empowered to conclude contracts by the
Conditions of Employment of Other Servants of the European
Communities in respect of its staff.

(1) OJ L 357, 31.12.2002, p. 72.

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3. The governing board shall, in agreement with the Commis-
sion, adopt the necessary implementing measures referred to in
Article 110 of the Staff Regulations of Officials of the European
Communities, and the Conditions of Employment of Other
Servants of the European Communities.

Article 10

Jurisdiction of the Court of Justice and applicable law

1. The Court of Justice shall have jurisdiction:

4. The staff resources shall be determined in the establishment
plan of the ENIAC Joint Undertaking that shall be set out in its
annual budget.

5. The staff of the ENIAC Joint Undertaking shall consist of
temporary agents and contract agents engaged for a fixed period
that may be renewed no more than once for a fixed period. The
total period of engagement shall not exceed seven years and shall
not in any case exceed the lifetime of the Joint Undertaking.

6. All cost related to the staff shall be borne by the ENIAC Joint
Undertaking.

7. The ENIAC Joint Undertaking may adopt provisions to allow
experts to be seconded to it.

Article 8

Privileges and immunities

(a)

any dispute between the members which relates to the
the statutes
subject matter of
referred to in Article 4;

this Regulation and/or

(b)

pursuant to any arbitration clause contained in agreements
and contracts concluded by the ENIAC Joint Undertaking;

(c)

(d)

in actions brought against the ENIAC Joint Undertaking,
its bodies, under the conditions
including decisions of
provided for in Articles 230 and 232 of the Treaty;

in disputes related to compensation for damage caused by
the
the ENIAC Joint Undertaking in the
performance of their duties.

staff of

For any matter not covered by this Regulation or by other
2.
acts of Community law, the law of the State where the seat of the
ENIAC Joint Undertaking is located shall apply.

The Protocol on the Privileges and Immunities of the European
Communities shall apply to the ENIAC Joint Undertaking and its
staff.

Article 11

Report, evaluations and discharge

Article 9

Liability

1. The Commission shall present to the European Parliament
and the Council an annual report on the progress achieved by the
ENIAC Joint Undertaking. This report shall contain details of
implementation of the JTI on nanoelectronics, including number
of proposals submitted, number of proposals selected for
funding,
including SMEs, and country
statistics.

type of participants,

1. The contractual
liability of the ENIAC Joint Undertaking
shall be governed by the relevant contractual provisions and by
the law applicable to the agreement or contract in question.

In the case of non-contractual

liability, the ENIAC Joint
2.
Undertaking shall,
in accordance with the general principles
common to the laws of the Member States, make good any
damage caused by its staff in the performance of their duties.

3. Any payment by the ENIAC Joint Undertaking in respect of
the liability referred to in paragraphs 1 and 2 and the costs and
expenses incurred in connection therewith shall be considered as
expenditure of the ENIAC Joint Undertaking and shall be covered
by the resources of the ENIAC Joint Undertaking.

4. The ENIAC Joint Undertaking shall be solely responsible for
meeting its obligations.

2. By 31 December 2010, as well as by 31 December 2013,
the Commission shall carry out an interim evaluation of the
ENIAC Joint Undertaking with the assistance of independent
experts, on the basis of terms of reference established after
consultation of the ENIAC Joint Undertaking. These evaluations
shall cover
the ENIAC Joint
Undertaking and progress towards the objectives set. The
Commission shall
thereof,
accompanied by its observations and, where appropriate,
proposals to amend this Regulation, including the possible early
termination of the ENIAC Joint Undertaking, to the European
Parliament and the Council.

the quality and efficiency of

communicate

conclusions

the

3. No later than six months after the winding-up of the ENIAC
Joint Undertaking,
the Commission shall conduct a final
evaluation of the ENIAC Joint Undertaking with the assistance
of independent experts. The results of the final evaluation shall
be presented to the European Parliament and the Council.

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4. Discharge for the implementation of the budget of the
ENIAC Joint Undertaking shall be given by the European
Parliament, upon recommendation of the Council, in accordance
with the procedure provided for in the financial rules of the
ENIAC Joint Undertaking referred to in Article 6.

Article 12

Protection of the financial interests of the members and
anti-fraud measures

1. The ENIAC Joint Undertaking shall ensure that the financial
interests of its members are adequately protected by carrying out
or commissioning appropriate internal and external controls.

2.
In case of irregularities, the members of the ENIAC Joint
Undertaking shall reserve the right to recover amounts unduly
spent, including by a reduction or a suspension of subsequent
contributions to the ENIAC Joint Undertaking.

For the purposes of combating fraud, corruption and other

3.
illegal acts, Regulation (EC) No 1073/1999 shall apply.

4. The ENIAC Joint Undertaking shall carry out on-the-spot
checks and financial audits among the recipients of the ENIAC
Joint Undertaking's public funding. These checks and audits shall
be performed either directly by the ENIAC Joint Undertaking or
by ENIAC member States on its behalf. ENIAC member States
may carry out any other checks and audits among the recipients
of their national funding as they deem necessary and shall
communicate the results to the ENIAC Joint Undertaking.

5. The Commission and/or the Court of Auditors may,
if
necessary, carry out on-the-spot checks among the recipients of
agents
the ENIAC Joint Undertaking's
responsible for its allocation. To that end, the ENIAC Joint
Undertaking shall ensure that grant agreements and contracts
provide for the right of the Commission and/or of the Court of
Auditors to carry out the appropriate controls and, in the event
to impose dissuasive and
the detection of
of
proportionate penalties.

funding and the

irregularities,

in respect of

6. The European Anti-Fraud Office (OLAF) established by
Commission Decision 1999/352/EC, ECSC, Euratom (1) shall
enjoy the same powers
the ENIAC Joint
Undertaking and its staff as it enjoys in respect of Commission
departments. As soon as the ENIAC Joint Undertaking is
established, it shall accede to the Interinstitutional Agreement of
25 May 1999 between the European Parliament, the Council and
the Commission concerning internal investigations by OLAF (2).
The ENIAC Joint Undertaking shall adopt the necessary measures
needed to facilitate internal investigations conducted by OLAF.

Article 13

Confidentiality

Without prejudice to Article 14, the ENIAC Joint Undertaking
shall ensure the protection of sensitive information, whose

disclosure could damage the interests of its members or of
participants in projects.

Article 14

Transparency

1. Regulation (EC) No 1049/2001 of the European Parliament
and of the Council of 30 May 2001 regarding access to European
Parliament, Council and Commission documents (3) shall apply
to documents held by the ENIAC Joint Undertaking.

2. The ENIAC Joint Undertaking shall adopt
the practical
arrangements for implementing Regulation (EC) No 1049/2001
by 7 August 2008.

3. Decisions taken by the ENIAC Joint Undertaking pursuant to
Article 8 of Regulation (EC) No 1049/2001 may form the
subject of a complaint to the Ombudsman or of an action before
the conditions laid down in
Justice, under
the Court of
Articles 195 and 230 of the Treaty respectively.

Article 15

Intellectual property

The rules governing the protection, use and the dissemination of
research results, based on Regulation (EC) No 1906/2006, are set
out in Article 23 of the statutes.

Article 16

Preparatory actions

1. The Commission shall be responsible for the establishment
and initial operation of the ENIAC Joint Undertaking until the
Joint Undertaking has the operational capacity to implement its
own budget. The Commission shall carry out, in accordance with
Community law, all necessary actions in collaboration with other
founding members and with the involvement of the competent
bodies.

2.
For that purpose, until such time as the executive director
takes up his/her duties following his/her appointment by the
governing board in accordance with Article 7(2) of the statutes,
the Commission may assign a limited number of its officials,
including one to fulfil the functions of the executive director, on
an interim basis.

3. The interim executive director may authorise all payments
covered by the credits provided in the budget of the ENIAC Joint
Undertaking once approved by the governing board and may
conclude contracts,
following the
adoption of the ENIAC Joint Undertaking establishment plan.

including staff contracts

(1) OJ L 136, 31.5.1999, p. 20.
(2) OJ L 136, 31.5.1999, p. 15.

(3) OJ L 145, 31.5.2001, p. 43.

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The Commission authorising officer may authorise all payments
covered by the credits provided in the budget of the ENIAC Joint
Undertaking.

privileges and immunities and other support to be provided by
Belgium to the ENIAC Joint Undertaking.

Article 17

Support from the host State

Article 18

Entry into force

A host agreement shall be concluded between the ENIAC Joint
Undertaking and Belgium concerning office accommodation,

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

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

Done at Brussels, 20 December 2007.

For the Council

The President

F. NUNES CORREIA

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ANNEX

STATUTES OF THE ENIAC JOINT UNDERTAKING

Article 1

Definitions

Article 3

Members

For the purposes of these statutes, the following definitions shall apply:

1. The founding members of the ENIAC Joint Undertaking (hereinafter
founding members) shall be:

(a)

(b)

(c)

(d)

‘project’ means a research and/or development project that is
selected by the ENIAC Joint Undertaking following open and
competitive calls for proposals and thereafter partly funded by the
ENIAC Joint Undertaking;

‘total costs’ means eligible costs of the projects as defined by the
respective funding authorities issuing the grant agreements;

‘running costs’ means the costs necessary for the functioning of the
ENIAC Joint Undertaking excluding the funding of R & D activities;

‘affiliated entity’ means an affiliated entity as defined in Article 2 of
the Regulation (EC) No 1906/2006.

Article 2

Tasks and activities

(a)

the Community, represented by the Commission;

(b)

(c)

Belgium, Germany, Estonia, Ireland, Greece, Spain, France, Italy, the
Netherlands, Poland, Portugal, Sweden, the United Kingdom; and

upon acceptance of the statutes of the ENIAC Joint Undertaking,
the AENEAS association (hereinafter referred to as ‘AENEAS), an
association
(registration
No 20070039) with its registered office in Paris (France), acting
as a representative of companies and other R & D actors operating
in the field of nanoelectronics in Europe.

registered

French

under

law

Provided that

2.
they subscribe to the objectives as described in
Article 2 of this Regulation and are willing to assume all obligations of
membership, including the acceptance of the statutes of the ENIAC Joint
Undertaking, the following entities may become members of the ENIAC
Joint Undertaking:

The main tasks and activities of the ENIAC Joint Undertaking shall be the
following:

(a)

other Member States and associated countries;

(a)

(b)

(c)

(d)

(e)

to ensure the establishment and sustainable management of the JTI
on nanoelectronics;

to define and make any necessary adjustment to the multiannual
strategic plan including the Research Agenda as referred to in
Article 19;

(b)

(c)

any other country (hereinafter
pursuing R & D policies or programmes
nanoelectronics;

referred to as third country)
in the area of

any other legal entity capable of making a substantial financial
contribution to the achievement of the objectives of the ENIAC
Joint Undertaking.

to define and carry out annual implementation plans for executing
the multiannual strategic plan as referred to in Article 19;

3. The founding members and new members as referred to in
paragraph 2 shall hereinafter be referred to as ‘members’.

to initiate calls for proposals, to evaluate proposals, and award
funding to projects
transparent and
effective procedures, within the limits of available funds;

selected through open,

to develop close cooperation and ensure coordination with
European national and trans-national activities, bodies and
stakeholders, in particular the Framework Programme, aiming at
fostering a fertile innovation environment in Europe and better
synergies and exploitation of R & D results in the area of
nanoelectronics;

4. Member States and associated countries members of the ENIAC Joint
Undertaking shall hereinafter be referred to as ‘ENIAC member States’.
Each ENIAC member State shall appoint its representative in the bodies
of the ENIAC Joint Undertaking and designate the national entity or
entities
to
implementation of the activities of the ENIAC Joint Undertaking.

fulfilling its obligations with respect

responsible for

5. The ENIAC member States and the Commission shall hereinafter be
referred to as the ‘public authorities’ of the ENIAC Joint Undertaking.

(f)

to monitor progress towards the objectives of the ENIAC Joint
Undertaking;

Article 4

Accession and changes to membership

(g)

to undertake communication and dissemination activities;

(h)

to publish information on the projects, including the name of the
participants and the amount of the financial contribution of the
ENIAC Joint Undertaking per participant;

(i)

to carry out any other activity needed to achieve the objectives
referred to in Article 2 of this Regulation.

1. Any new membership application to the ENIAC Joint Undertaking
shall be addressed to the governing board in accordance with Arti-
cle 6(2)(a).

2. Member States or associated countries that are not
founding
members of the ENIAC Joint Undertaking shall become members upon
notification to the governing board of their written acceptance of these
statutes and of any other provisions governing the functioning of the
ENIAC Joint Undertaking.

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3. Any application for membership of the ENIAC Joint Undertaking by
third countries shall be considered by the governing board, which shall
make a recommendation to the Commission. The Commission may
make a proposal to amend this Regulation on the accession of the third
country, subject to the successful completion of negotiations with the
ENIAC Joint Undertaking.

4. Decisions of the governing board on accession of any other legal
entity or recommendations of the governing board on the accession of
third countries shall be made taking into account the relevance and
the
potential added value of
objectives of the ENIAC Joint Undertaking. For any application for new
membership, the Commission shall provide timely information to the
Council on the assessment and, where applicable, on the decision of the
governing board.

the applicant for the achievement of

5. Membership of the ENIAC Joint Undertaking may not be transferred
to a third party unless the prior agreement of the governing board is
given.

6. Any member may withdraw from the ENIAC Joint Undertaking.
Withdrawal shall become effective and irrevocable six months after
notification to the other members following which the former member
shall be discharged from any obligations other than those already
undertaken through decisions of
the ENIAC Joint Undertaking in
accordance with these statutes, prior to the member's withdrawal.

Article 5

Bodies of the ENIAC Joint Undertaking

1. The bodies of the ENIAC Joint Undertaking shall be:

(a)

the governing board;

(b)

the executive director;

(c)

the public authorities board;

(d)

the industry and research committee.

In case a specific task is not assigned to one of the bodies, the

2.
governing board shall be the competent one.

Article 6

Governing board

1. Composition, voting rights and decision-taking

(a)

(b)

(c)

(d)

The governing board shall consist of
the
members of the ENIAC Joint Undertaking and the chairperson of
the industry and research committee;

representatives of

each member of the ENIAC Joint Undertaking shall appoint its
representatives and a lead delegate who shall hold the voting rights
of the member in the governing board. The chairperson of the
industry and research committee shall have no voting rights;

voting rights for AENEAS and the public authorities shall be equal
and shall amount in total to at least 90 % of the total votes. The
initial distribution of the voting rights shall be 50 % for AENEAS
and 50 % for public authorities;

the distribution of the votes for the public authorities shall be
established annually in proportion to the funds
they have
two financial years. The
committed to projects in the past
Commission shall hold a minimum of 10 % of the votes;

(e)

(f)

(g)

(h)

for the first financial year, and any subsequent financial years in
which one or two ENIAC member States have committed public
funds to projects in the previous financial years, the Commission
shall hold one third of
the votes corresponding to public
authorities. The remaining two thirds shall be distributed equally
amongst the ENIAC member States;

voting rights for any new member that is not a Member State or an
associated country shall be determined by the governing board
before accession of this member to the ENIAC Joint Undertaking;

decisions shall be adopted by a majority of at least 75 % of votes
unless otherwise explicitly stated in these statutes;

the representatives shall not be personally liable for actions
undertaken in their capacity as representatives to the governing
board.

2. Role and tasks

The governing board shall have overall responsibility for the operations
of the ENIAC Joint Undertaking and shall oversee the implementation of
its activities.

The governing board shall in particular:

(a)

(b)

(c)

(d)

(e)

assess applications and decide or recommend changes in member-
ship in accordance with Article 4;

decide on the termination of the membership of any member that
is in default of its obligations and has not remedied within a
reasonable period set by the executive director, without prejudice
the Treaty ensuring compliance with
to the provisions of
Community law;

adopt the financial rules of
accordance with Article 6 of this Regulation;

the ENIAC Joint Undertaking in

approve the initiatives to amend the statutes in accordance with
Article 24;

approve the multiannual strategic plan including the Research
Agenda referred to in Article 19(1);

(f)

supervise the overall activities of the ENIAC Joint Undertaking;

(g)

(h)

(i)

(j)

supervise progress in implementing the multiannual strategic plan
referred to in Article 19(1);

approve, in accordance with Article 18(4) the annual implementa-
tion plan and the annual budget plan referred to in Article 19(3),
including the staff establishment plan;

approve the annual activity report referred to in Article 19(4) and
the annual accounts and balance sheet;

appoint, dismiss or replace the executive director, provide guidance
to the executive director, and monitor the executive director's
performance;

(k)

establish committees or working groups to carry out specific tasks
as necessary;

(l)

adopt its rules of procedure in accordance with paragraph 3;

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(m)

assign any task not specifically allocated to one of the other bodies
of the ENIAC Joint Undertaking;

(d)

to present proposals on the internal functioning of the ENIAC Joint
Undertaking to the governing board for approval;

(n)

adopt practical arrangements for implementing Regulation (EC)
No 1049/2001 as referred to in Article 14 of this Regulation.

The Community shall hold a veto right for all decisions related to the use
of its financial contributions, decisions concerning the winding-up of the
ENIAC Joint Undertaking and decisions related to points (a), (b), (c), (j)
and (n).

3. Rules of procedure

the governing board shall meet at least twice a year, normally at the
seat of the ENIAC Joint Undertaking;

the meetings of the governing board shall be chaired by the
chairperson of the industry and research committee;

(e)

(f)

(g)

to present proposals on the rules of procedure for calls for
proposals launched by the ENIAC Joint Undertaking, including the
associated project proposal evaluation and selection process to the
public authorities board for approval;

the process of
to manage the launch of calls for proposals,
evaluating and selecting project proposals and negotiating grant
agreements for selected proposals, and the subsequent periodic
monitoring and follow-up of projects within the mandate given by
the public authorities board;

to conclude grant agreements for the implementation of the R & D
activities as referred to in Articles 12 and 13, and service and
supply contracts necessary for the operations of the ENIAC Joint
Undertaking as referred to in Article 20;

unless otherwise decided by the governing board, the executive
director shall participate in the meetings;

(h)

to authorise all payments due by the ENIAC Joint Undertaking;

until the governing board has adopted its own rules of procedure
the meetings shall be convened by the Commission;

(i)

the quorum of the governing board shall be constituted by the
Commission, AENEAS and at least three ENIAC member States
representatives.

to establish and implement the necessary measures and actions for
assessing the progress of the ENIAC Joint Undertaking towards
achieving its objectives,
including independent monitoring and
auditing to assess the effectiveness and performance of the ENIAC
Joint Undertaking;

Article 7

Executive Director

1. The Executive Director shall be the chief executive responsible for
the day-to-day management of
the ENIAC Joint Undertaking in
accordance with the decisions of the governing board and its legal
representative. He/she shall perform his/her
tasks with complete
independence and shall be accountable to the governing board. The
executive director shall exercise, in respect of the staff, the powers laid
down in Article 7(2) of this Regulation.

2. The Executive Director shall be appointed by the governing board
for a period of three years, following a call for expression of interest
published in the Official
the European Union and in other
publicly accessible periodicals or Internet sites. After an evaluation of the
executive director's performance, the governing board may extend the
term of office once for a further period of not more than four years.

Journal of

3. The role and tasks of the Executive Director shall be:

to prepare the annual implementation plan referred to in Arti-
cle 19(3) and the annual budget plan, in collaboration with the
industry and research committee, and submit
them to the
governing board for approval, in accordance with Article 18;

to oversee the organisation and execution of all activities needed to
carry out the annual implementation plan within the framework
and the rules laid down by these statutes and subsequent decisions
adopted by the governing board and the public authorities board;

(j)

(k)

(l)

(m)

to organise project reviews and technical audits for the assessment
of
to the
governing board on the overall results;

research and development

results, and to report

to carry out financial audits, directly or through the national public
authorities, on project participants as necessary,
in compliance
with the financial rules of the ENIAC Joint Undertaking;

to negotiate the conditions for accession of new members of the
ENIAC Joint Undertaking, on behalf of and within the mandate of
the governing board;

the successful
to carry out any other necessary action for
the ENIAC Joint Undertaking's objectives not
achievement of
implementation plan referred to in
provided for in the annual
Article 19(3), within any limits and conditions established by the
governing board;

(n)

to convene and/or organise meetings of the governing board and
of the public authorities board and to attend where appropriate
these meetings as an observer;

(o)

to provide the governing board with any information requested by
it;

(p)

to submit to the governing board his proposal(s) concerning the
organisation structure of the Secretariat;

(a)

(b)

(c)

(d)

(e)

(a)

(b)

(c)

to prepare the annual activity report and the annual accounts
referred to in Article 19(4) and balance sheets as referred to in
them to the governing board for
Article 18(5) and submit
approval;

(q)

to perform risk assessment and risk management analysis and to
propose to the governing board any insurance that it may be
necessary for the ENIAC Joint Undertaking to take out in order to
meet its obligations.

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4. A secretariat under the responsibility of the executive director shall
be established to provide support to all his/her tasks, including:

(a)

secretarial support for the bodies of the ENIAC Joint Undertaking;

(b)

operational support
for evaluating proposals and monitoring
projects, including support in organising calls for proposals and
arranging for project reviews and technical audits;

(f)

(g)

the representative of the Community shall have a veto right on all
issues concerning the use of its own contribution to the ENIAC
Joint Undertaking;

any Member State or associated country to the Framework
Programme that is not a member of the ENIAC Joint Undertaking
shall be able to participate in the public authorities board as an
observer. These States shall receive all relevant public authorities
board documents and shall be able to provide advice on any
decision taken by the public authorities board.

(c)

establishment and management of an appropriate internal audit
and accounting system;

2. Role and tasks

(d)

financial tasks, including payments of financial contributions from
the ENIAC Joint Undertaking to participants in projects;

(e)

support for communication activities such as public relations,
publication and dissemination activities and organisation of events;

(f) managing invitations to tender for ENIAC Joint Undertaking
goods/services requirements according to the financial rules of the
ENIAC Joint Undertaking.

5. Non-financial tasks of the secretariat may be contracted by the
ENIAC Joint Undertaking to external service providers. Such contracts
shall be established in accordance with the provisions of the financial
rules of the ENIAC Joint Undertaking.

Article 8

The public authorities board shall:

(a)

(b)

(c)

(d)

ensure that the principles of fairness and transparency are properly
applied in the allocation of public funding to participants in
projects;

discuss and approve the annual work programme referred to in
Article 19(2) upon proposals from the industry and research
committee, including the budgets available for calls for proposals;

approve the rules of procedure for calls for proposals, for the
evaluation and selection of proposals and for monitoring of
projects;

upon proposal of the representative of the Community, decide on
the ENIAC Joint Undertaking financial contribution to the budget
of the calls for proposals;

Public authorities board

(e)

approve the scope and the launch of calls for proposals;

1. Composition, voting rights and decision-taking

(a)

The public authorities board shall consist of the public authorities
of the ENIAC Joint Undertaking;

(f)

(g)

each public authority shall appoint its representatives and a lead
delegate who shall hold the voting rights in the public authorities
board;

one third of the voting rights in the public authorities board shall
be assigned to the Community; the remaining two thirds shall be
allocated to the other members of the public authorities board on
an annual basis in proportion to their financial contribution to the
activities of
in
the ENIAC Joint Undertaking for
accordance with Article 11(6)(b) and with an upper limit for any
given member of 50 % of the total voting rights in the public
authorities board;

that year

(b)

(c)

(d)

approve the selection of project proposals to receive public funding
following calls for proposals;

upon proposal of the representative of the Community, decide on
financial
the percentage of
contribution referred to in Article 13(6)(a)
to participants in
projects arising from calls for proposals in any given year;

the ENIAC Joint Undertaking's

(h)

adopt its rules of procedure in accordance with paragraph 3.

3. Rules of procedure

(a)

the public authorities board shall meet at least twice a year,
normally at the seat of the ENIAC Joint Undertaking;

(b)

the public authorities board shall elect its chairperson;

if less than three ENIAC Member States have communicated to the
financial contribution according to
executive director
Article 11(6)(b), the Community shall hold one third of the votes
and the remaining two thirds shall be distributed equally amongst
the ENIAC Member States;

their

(c)

(d)

(e)

decisions shall be taken by at least 60 % of total votes;

the public authorities board has adopted its rules of

until
procedure, the meetings shall be convened by the Commission;

the quorum of the public authorities board shall be constituted by
three ENIAC member States
the Commission and at
representatives.

least

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Article 9

Article 10

Industry and research committee

Internal auditing function

1. Composition

(a)

AENEAS shall appoint the members of the industry and research
committee;

The functions entrusted by Article 185(3) of the financial Regulation to
the Commission's internal auditor shall be carried out under
the
responsibility of the governing board, which shall make appropriate
provision, taking into account the size and the scope of the ENIAC Joint
Undertaking.

(b)

the industry and research committee shall consist of no more than
25 members.

Article 11

Sources of financing

2. Role and tasks

The industry and research committee shall:

1. The activities of the ENIAC Joint Undertaking shall be jointly funded
through financial contributions paid in partial instalments and in-kind
contributions from its members to support the running costs and the
R & D Activities.

elaborate the draft multiannual strategic plan referred to in
Article 19(1), including the content and update of the Research
Agenda, and submit it to the governing board for approval;

2. All resources of the ENIAC Joint Undertaking shall be devoted to
achieving the objectives laid down in Article 2 of this Regulation.

(a)

(b)

prepare the draft annual work programme referred to in Arti-
cle 19(2), including proposals for the content of calls for proposals
to be launched by the ENIAC Joint Undertaking;

(c)

elaborate proposals regarding the technological, research and
innovation strategy of the ENIAC Joint Undertaking;

(d)

(e)

(f)

elaborate proposals for activities regarding the creation of open
innovation environments, promoting the participation of SMEs,
developing standards transparently and with openness to partici-
pation,
cooperation, dissemination and public
relations;

international

advise the other bodies on any issue related to planning and
operating research and development programmes,
fostering
partnerships and leveraging resources in Europe in order to
achieve the objectives of the ENIAC Joint Undertaking;

appoint working groups where necessary under
coordination of one or more members of
research committee in order to achieve the above tasks;

the overall
the industry and

(g)

adopt its rules of procedure in accordance with paragraph 3.

3. Rules of procedure

(a)

the industry and research committee shall meet at least twice a
year;

(b)

the industry and research committee shall elect its chairperson;

(c)

until the industry and research committee has adopted its own
rules of procedure, the meetings shall be convened by AENEAS.

3. The resources of the ENIAC Joint Undertaking entered to its budget
shall be composed of:

(a) members’ contributions to the running costs, except for those

referred to in paragraph 5(c);

(b)

a Community contribution to fund the R & D activities;

(c)

any revenue generated by the ENIAC Joint Undertaking;

(d)

any other financial contributions and revenues.

Any interest yielded by the contributions paid by its members shall be
considered to be revenue of the ENIAC Joint Undertaking.

4. Any legal entity that is not a member may make in-kind or cash
contributions to the resources of the ENIAC Joint Undertaking under the
terms and conditions negotiated by the executive director on behalf of
and within the mandate granted by the governing board.

5. The running costs of the ENIAC Joint Undertaking shall be borne by
its members:

(a)

(b)

(c)

AENEAS shall make a contribution of up to EUR 20 million or up
to 1 % of the sum of the total cost of all projects, whichever figure
is higher, but not exceeding EUR 30 million;

the Community shall make a contribution of up to EUR 10 million.
If part of this contribution is not used it may be available for R & D
Activities referred to in paragraph 6;

ENIAC Member States shall make in-kind contributions to the
running costs by facilitating the implementation of projects and
the granting of public funds as referred to in Articles 12 and 13;

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(d)

the contributions of the Community and AENEAS shall be made
available in accordance with the provisions of the relevant annual
budget plan referred to in Article 18. Partial instalments shall be
provided on the basis of the Joint Undertaking's financial needs.

6. The R & D activities of the ENIAC Joint Undertaking shall be
supported through:

(a)

(b)

(c)

financial

contribution from the Community of up to
a
EUR 440 million to finance projects which may be increased by
any unspent part of the Community contribution referred to in
paragraph 5(b);

financial contributions from ENIAC Member States that shall
amount in total to at least 1,8 times the Community's financial
contribution. These financial contributions shall be paid to project
participants according to the provisions of Articles 12 and 13.
Every year, ENIAC member States shall communicate to the
executive director by a date determined by the governing board
their national
for
proposals to be launched by the ENIAC Joint Undertaking taking
into account the scope of the supported R & D activities addressed
in the calls for proposals;

financial commitments

reserved for calls

in-kind contributions by R & D organisations participating in
projects which shall be equal to their share of the necessary eligible
cost of carrying out the projects as defined on the basis of the rules
of the funding authorities issuing the grant agreements. Their
overall contribution over
the ENIAC Joint
Undertaking shall be equal to or greater than the contribution of
public authorities.

the duration of

7. The financial contributions of the members to the ENIAC Joint
Undertaking shall be paid through partial instalments in accordance with
the provisions of the annual budget plan referred to in Article 18.

8. Any new member of the ENIAC Joint Undertaking other than
Member States or associated countries shall make a financial contribu-
tion to the ENIAC Joint Undertaking.

9.
Should any member of the ENIAC Joint Undertaking be in default of
its commitments concerning its agreed financial contribution to the
ENIAC Joint Undertaking, the executive director shall notify the member
thereof in writing and shall set a reasonable period by which the default
may be remedied. If the default is not remedied within the given period,
the executive director shall convene a meeting of the governing board to
decide whether the defaulting member's membership should be revoked
or if any other measures should be taken until its obligations have been
met.

10. The ENIAC Joint Undertaking shall own all assets generated by or
transferred to it for the fulfilment of its objectives as described in
Article 2 of this Regulation, unless otherwise specified.

Article 12

Implementation of R & D activities

1. The ENIAC Joint Undertaking shall support R & D activities through
open and competitive calls for proposals, independent evaluation and
selection of proposals, allocation of public funding to selected proposals,
and the funding of projects.

2. The ENIAC Joint Undertaking shall conclude grant agreements with
project participants for the implementation of the projects. The terms
and conditions of these grant agreements shall be in accordance with the
financial rules of the ENIAC Joint Undertaking and shall refer to and,
where appropriate, rely on corresponding national grant agreements as
referred to in Article 13(6)(b).

3.
In order to enable the implementation of projects and the granting
of public funds, the ENIAC Joint Undertaking shall establish adminis-
trative arrangements with the national entities designated by the ENIAC
member States for that purpose, in line with the financial rules of the
ENIAC Joint Undertaking.

4. Member States or associated countries that are not members of the
ENIAC Joint Undertaking may conclude similar arrangements with the
ENIAC Joint Undertaking.

5. The ENIAC Joint Undertaking shall set up the procedures for the
supervision and control of the R & D activities, including provisions for
monitoring and technical auditing of projects. The ENIAC Member States
shall not require additional monitoring and technical audit reports other
than those required by the ENIAC Joint Undertaking.

Article 13

Funding of projects

Public funding for projects selected following calls for proposals
1.
published by the ENIAC Joint Undertaking consist of
the national
financial contributions of the ENIAC Member States, and/or of the
the ENIAC Joint Undertaking. Any public
financial contribution of
support under this initiative is without prejudice to the procedural and
material State aid rules when applicable.

2. The following legal entities shall be eligible for receiving funding
from the Community contribution to the R & D Activities of the ENIAC
Joint Undertaking:

(a)

(b)

legal entities established in the ENIAC Member States having
concluded a grant
such project with the
corresponding national authority following the award procedures
of the ENIAC Joint Undertaking;

agreement

for

other legal entities established in Member States or associated
countries that are not members of the ENIAC Joint Undertaking. In
this case, such States or countries may establish administrative
arrangements with the ENIAC Joint Undertaking to enable the
participation of the companies and R & D organisations located
within their territory.

In order to be considered eligible for Community funding, costs incurred
in the implementation of R & D Activities shall be exclusive of value
added tax.

3. The calls for proposals launched and published by the ENIAC Joint
Undertaking shall specify the overall budget available for each call. This
budget shall indicate the amounts committed at national level by each
ENIAC Member State and the estimated amount of the ENIAC Joint
Undertaking's financial contribution. The calls shall state the evaluation
criteria in relation to the objectives of the call and any national or Joint
Undertaking eligibility criteria.

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4. The ENIAC Joint Undertaking's financial contribution to the budget
for each call shall be equivalent to 55 % of the total amount committed
by the ENIAC Member States, unless the public authorities board decides
otherwise on a proposal from the representative of the Community.

Article 14

Financial commitments

5. Calls, evaluation and selection of proposals shall
following rules:

respect

the

(a)

(b)

(c)

(d)

(e)

calls for proposals launched by the ENIAC Joint Undertaking shall
be open to participants established in ENIAC Member States and in
any other Member State or associated country. They shall be made
public;

in project proposals

consortia of participants
submitted in
response to these calls shall include at least three non-affiliated
entities established in at least three ENIAC Member States. The
prospective participants and their contribution to the project
proposals shall be verified by the Joint Undertaking, on the basis of
verifications provided by the respective public authorities, against
the pre-defined national and Joint Undertaking eligibility criteria
for funding. They shall be informed on their compliance, where
possible before they submit a full project proposal. These checks
shall not result in significant delays in the proposal evaluation and
the selection process;

the evaluation and selection process carried out with the assistance
of independent experts shall ensure that allocation of the ENIAC
Joint Undertaking's public funding follows the principles of equal
treatment, excellence and competition;

following the evaluation of proposals, the public authorities board
shall establish a ranked list of proposals on the basis of clear
evaluation criteria and their collective contribution towards
achieving the objectives of the call;

the public authorities board shall decide on the selection of
proposals and the allocation of public funding to selected
proposals up to the limit of the budgets available, taking into
account any national eligibility criteria and the verifications carried
out in accordance with point (b). This decision shall also be
binding for ENIAC Member States without any further evaluation
or selection processes.

6.

Funding of projects

(a)

(b)

the financial contribution of the ENIAC Joint Undertaking to
participants in projects shall be provided at a percentage of the
total costs, defined when appropriate by the respective funding
authorities issuing the grant agreements, incurred for implement-
ing the project. This percentage shall be determined on a yearly
basis by the ENIAC Joint Undertaking and be up to 16,7 %. This
percentage shall be equal for all participants in projects arising
from any given call for proposals;

ENIAC Member States shall establish grant agreements with
participants in projects in accordance with their national rules,
in particular as regards eligibility criteria and other necessary
requirements. When applicable, national
financial and legal
financial contributions from ENIAC Member States shall be
disbursed directly to participants in projects according to the
national grant agreements. ENIAC Member States shall undertake
best efforts to synchronise the terms and conditions and the
establishment of grant agreements and to disburse their financial
contributions in a timely manner.

The financial commitments of the ENIAC Joint Undertaking shall not
exceed the amount of financial resources available or committed to its
budget by its members.

Article 15

Financial revenues

Except when the ENIAC Joint Undertaking is wound up pursuant to
Article 25, any excess revenue over expenditure shall not be paid to the
members of the ENIAC Joint Undertaking.

Article 16

Financial year

The financial year shall correspond to the calendar year.

Article 17

Financial implementation

The Executive Director shall implement the budget of the ENIAC Joint
Undertaking.

Article 18

Financial reporting

1.
Every year, the Executive Director shall present to the governing
board a preliminary draft annual budget plan containing a forecast of
annual expenditure for the following two years and including the staff
establishment plan. Within this forecast, the estimates of revenue and
expenditure for the first of those two years shall be drawn up in such
detail as is necessary for the internal budgetary procedure of each
member
regarding its financial contributions to the ENIAC Joint
Undertaking. The executive director shall supply the governing board
with all supplementary information needed for this purpose.

2. The members of the governing board shall communicate to the
executive director their comments on the preliminary draft annual
budget plan and in particular on the estimates of resources and
expenditure for the following year.

3. Taking into account the comments received from the members of
the governing board, the Executive Director shall prepare the draft
annual budget plan for the following year in collaboration with the
industry and research committee and submit it to the governing board
for approval.

4. The annual budget plan and the annual
implementation plan,
referred to in Article 19(3), for a particular year shall be adopted by the
governing board of the ENIAC Joint Undertaking by the end of the
previous year.

5. Within two months of the closure of each financial year, the annual
accounts and balance sheets for the preceding year shall be submitted by
the executive director to the governing board for approval. The annual
accounts and balance sheets for the preceding year shall be submitted to
the Court of Auditors and the Commission.

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Article 19

Planning and reporting

Article 22

Conflict of interests

1. The multiannual strategic plan shall specify the strategy and plans
for achieving the objectives of the ENIAC Joint Undertaking, including
the Research Agenda.

The ENIAC Joint Undertaking shall avoid any conflict of interest in the
implementation of its activities.

2. The annual work programme shall describe the scope and budget of
calls for proposals needed to implement the Research Agenda for a
particular year.

Article 23

Intellectual property policy

3. The annual
implementation plan shall specify the plan for the
execution of all the activities of the ENIAC Joint Undertaking for a
particular year, including planned calls for proposals and actions needing
to be implemented through calls for proposals. The annual implementa-
tion plan shall be presented by the executive director to the governing
board together with the annual budget plan referred to in Article 18.

1. The following rules governing the protection, use and the
research results are based on Regulation (EC)
dissemination of
No 1906/2006 and shall ensure that, where appropriate, intellectual
property generated in R & D Activities under this Regulation is protected,
and that research results are used and disseminated.

4. The annual activity report shall present progress made by the ENIAC
Joint Undertaking in each calendar year, in particular in relation to the
multiannual strategic plan and the annual implementation plan for that
year. It shall also include information on the participation of SMEs in
Joint Undertaking's R & D Activities.

The annual activity report shall be presented by the executive director
together with the annual accounts and balance sheets.

5. Once approved by the governing board, a publishable version of the
multiannual strategic plan, the annual
implementation plan and the
annual activity report shall be made available.

Article 20

Service and supply contracts

The ENIAC Joint Undertaking shall set up all the appropriate procedures
and mechanisms for the implementation, supervision and control of
service and supply contracts concluded where necessary for
the
operations of the ENIAC Joint Undertaking, according to the provisions
of its financial rules.

Article 21

Liability of members, insurance

1. The ENIAC Joint Undertaking shall not be responsible for meeting
the financial obligations of its members. It shall not be liable for any
ENIAC member State failing to meet its obligations resulting from calls
for proposals launched by the ENIAC Joint Undertaking.

2. The members are not liable for any of the ENIAC Joint Undertaking's
obligations. The financial liability of the members is an internal liability
towards the ENIAC Joint Undertaking only, and is limited to their
commitment to contribute to the resources as set out in Article 11(3).

3. Notwithstanding the financial contribution due to project partici-
pants pursuant to Article 13(6)(a), the financial liability of the ENIAC
Joint Undertaking for its debts is limited to the contributions that the
members have made to the running costs as set out in Article 11(3)(a).

4. The ENIAC Joint Undertaking shall
appropriate insurance.

take out and maintain

The objective of the intellectual property policy as laid down in this
Article is to promote the creation of knowledge and its exploitation, to
achieve fair allocation of rights, to reward innovation, and to achieve
broad participation of private and public entities in projects.

2.

For the purposes of this Article:

(a)

(b)

(c)

(d)

‘information’ means any drawings, specifications, photographs,
instructions, software,
samples, models, processes, procedures,
reports, papers, or any other
technical and/or commercial
information, know-how, data or documents of any kind, including
oral information, other than ‘Intellectual Property Rights’;

‘Intellectual Property Rights’ (IPR) means any intellectual property
rights,
including patents, utility models and utility certificates,
industrial design rights, copyrights, trade secrets, database rights,
topographies of semiconductor products' rights, as well as any
registrations, applications, divisions, continuations, re-examina-
tions, renewals or reissues of any of the foregoing, excluding
trademarks and trade names;

‘background information’ means any information which is owned
or controlled by a project participant on the effective date of the
corresponding project agreement, or in respect of which ownership
or control
is acquired by a project participant as a result of
activities outside the framework of the project;

‘background IPR’ means any IPRs which are owned or controlled
by a project participant on the effective date of the corresponding
project agreement, or in respect of which ownership or control is
acquired during the term of the corresponding project agreement
as a result of activities outside the framework of the project;

(e)

‘background’ means background information and background IPR;

(f)

(g)

‘foreground information’ means any information that is generated
as a result of the activities conducted within the framework of a
project concerned, as specified in the corresponding project
agreement;

‘foreground IPR’ means any IPRs that are generated as a result of
the project
the activities conducted within the framework of
concerned as specified in the corresponding project agreement;

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(h)

‘foreground’ means foreground information and foreground IPR;

background needed for the purposes of the project and, where
appropriate, may agree to exclude specific background.

(i)

(j)

(k)

(l)

‘access right’ means non-exclusive licenses and user rights to
foreground or background, which rights shall not include the right
to sublicense unless otherwise agreed upon in the project
agreement;

‘needed’ means ‘technically essential’ for the implementation of the
project and/or in respect of use of foreground and, where IPRs are
concerned, shall mean that those IPRs would be infringed if the
access rights were not granted;

‘use’ means the developing, creating and marketing of a product or
process for creating and providing a service as may be further
defined in the applicable project agreement;

‘dissemination’ means
foreground by any
the disclosure of
appropriate means other than that resulting from the formalities
for protecting it, and including the publication of foreground in
any medium;

(m)

‘project agreement’ means an agreement between project partici-
pants setting forth all or part of the terms and conditions that
apply between them regarding a specific project, such as a project
consortium agreement, which agreement shall
include without
limitation access rights in accordance with this Article;

(n)

‘transfer conditions’ means financial conditions that have a value
lower than fair and reasonable conditions, normally the cost of
making the access rights available.

3.2.2. Access rights to background shall be granted to other participants
in the same project if such background is needed by those other
participants to carry out their own work in the project, provided
that the owner is entitled to grant such rights. Access rights shall
be granted on transfer conditions to be agreed by the project
participants concerned, unless otherwise agreed by all participants
in the project agreement.

3.2.3. Access rights to foreground shall be granted to other participants
in the same project if such foreground is needed by those other
participants to carry out their own work in the project. Such
access rights shall be granted on a royalty-free non-exclusive and
non-transferable basis.

3.2.4. Participants in the same project shall enjoy access rights to
background if this is needed for the use of their own foreground of
that project, provided that the owner of the background is entitled
to grant them. Such access rights shall be granted on a non-
exclusive, non-transferable basis on fair, reasonable and non-
discriminatory conditions.

3.2.5. Participants in the same project shall enjoy access rights to
foreground if this is needed for their own use. Such access rights
shall be granted on a non-transferable non-exclusive basis either
royalty-free or on fair,
reasonable and non-discriminatory
conditions.

3. Without prejudice of Community competition rules, the intellectual
property arrangements in projects shall be governed by the following
principles:

3.2.6. Subject to the agreement of all the owners concerned, access rights
to foreground for the purposes of pursuing further research
activities shall be granted to a third party on fair and reasonable
conditions to be agreed.

3.1. Ownership

3.1.1. The ENIAC Joint Undertaking shall own any tangible and
intangible assets created with its own resources or transferred to
it for the implementation of the ENIAC Joint Undertaking, unless
otherwise specified.

3.1.2. Notwithstanding the provisions above, the ENIAC Joint Under-
taking shall not retain any information or IPR created in projects.

3.1.3. Each participant in a project remains the owner of its background.
Participants may define the background needed for the purposes
of
the ENIAC Joint Undertaking project in a written project
agreement and, where appropriate, may exclude specific back-
ground.

3.1.4. Foreground arising from work carried out under projects shall be
the property of the participant(s) carrying out the work generating
that foreground according to the arrangements described in the
grant and project agreements and the principles laid down in this
Article.

3.2. Access rights

3.2.1. Project participants may decide to grant broader access rights than
required by this Article. Project participants may define the

3.3. Protection, use and dissemination

3.3.1. Where foreground is capable of being profitably exploited,

its
owner (i) shall provide for its appropriate and effective protection,
having due regard to its own and other participants' legitimate
interests
in the project concerned, particularly commercial
interests, and (ii) shall use it or ensure that it is used.

3.3.2. Each participant shall ensure that the foreground of which it has

ownership is disseminated without undue delay.

3.3.3. All dissemination activities shall be compatible with the protection
of IPR, confidentiality obligations, and the legitimate interest of
the owners of the foreground.

3.3.4. Prior notice of any dissemination activity regarding foreground,
background or confidential information owned by other partici-
pants in the same project or other data or information that is
amalgamated with the other participants' foreground, background
or
shall be given to the other
participants. Within 45 days following such notification, any of
those participants may object in writing if its legitimate interests in
relation to its foreground or background may be harmed by such

information,

confidential

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dissemination. In such cases, the dissemination activity shall not
take place unless appropriate steps are taken to safeguard those
legitimate interests.

2. The initiatives referred to in paragraph 1, as approved by the
governing board, shall be submitted as draft amendments to the
Commission who shall adopt them, as appropriate.

3.3.5. All publications, patent applications filed by or on behalf of a
participant, or any other dissemination relating to foreground
shall
include a statement that the foreground concerned was
generated with financial support from the ENIAC Joint Under-
taking. All dissemination activities shall be compatible with the
protection of intellectual property rights, confidentiality obliga-
tions, and the legitimate interest of the owners of the foreground.

3.4. Transfer

3.4.1. Where a participant transfers ownership of foreground, it shall
pass on its obligations regarding such foreground to the transferee
including the obligation to pass those obligations on to any
subsequent
include those
relating to the granting of access rights, and dissemination and
use.

transferee. These obligations

shall

3.4.2. Subject

envisaged new owner of

to its obligations concerning confidentiality, where a
project participant is required to pass on its obligations to provide
access rights, it shall give at least 45 days' prior notice to the other
participants of the envisaged transfer, together with sufficient
information concerning the
the
foreground to permit the other participants to exercise their
access rights. Following notification, any other participant may
object within 30 days or within a different time-limit agreed in
writing, to any envisaged transfer of ownership on the grounds
that it would adversely affect its access rights. Where any of the
other participants demonstrate that their access rights would be
adversely affected, the intended transfer shall not take place until
agreement has been reached between participants concerned.

3.5. Project participants in the same project shall conclude among
themselves a project agreement that shall lay down the intellectual
property arrangements in compliance with this Article.

Article 24

Amendments to the statutes

1. Any member of the ENIAC Joint Undertaking may make an initiative
for amending the statutes to the governing board.

3. However, any amendment affecting the essential elements of these
statutes, and in particular amendments to Articles 3, 4, 6, 7, 11, 13, 21,
24 and 25 thereof, shall be adopted in accordance with Article 172 of
the Treaty.

Article 25

Winding up

1. At the end of the period provided for in Article 1(1) of
this
Regulation, or following an amendment pursuant to Article 11(2) of this
Regulation, the ENIAC Joint Undertaking shall be wound up.

2. The winding-up procedure shall be automatically triggered if the
Commission withdraws from the ENIAC Joint Undertaking.

For

the purpose of conducting the proceedings

involved in
3.
liquidating the ENIAC Joint Undertaking, the governing board shall
appoint one or more liquidators, who shall comply with the decisions of
the governing board.

4. When the ENIAC Joint Undertaking is being wound up, it shall
return to the host State any physical support item made available by the
host State in accordance with the host agreement referred to in
Article 17 of this Regulation.

5. When any physical asset has been dealt with as provided for in
paragraph 4, any further assets shall be used to cover the liabilities of the
ENIAC Joint Undertaking and the costs relating to its winding-up. Any
surplus shall be distributed among the members existing at the time of
the winding-up in proportion to their actual contribution to the ENIAC
Joint Undertaking. Any surplus distributed to the Community shall be
returned to the Commission budget.

6. Remaining assets shall be distributed to the members existing at the
time of the winding-up in proportion to their actual contribution to the
ENIAC Joint Undertaking.

7. An ad hoc procedure shall be set up to ensure the appropriate
management of any grant agreement and service and supply contract
concluded by the ENIAC Joint undertaking, with a duration longer than
the duration of the ENIAC Joint Undertaking.