Council Regulation (EC) No 521/2008 of 30 May 2008 setting up the Fuel Cells and Hydrogen Joint Undertaking Text with EEA relevance
Date: 2008-05-30
Institutions: Council of the European Union
Subjects: EU financing, EU research policy, energy technology, fuel cell, hydrogen, joint venture, legal status, public-private partnership

12.6.2008

EN

Official Journal of the European Union

L 153/1

(Acts adopted under the EC Treaty/Euratom Treaty whose publication is obligatory)

I

REGULATIONS

COUNCIL REGULATION (EC) No 521/2008

of 30 May 2008

setting up the Fuel Cells and Hydrogen Joint Undertaking

(Text with EEA relevance)

THE COUNCIL OF THE EUROPEAN UNION,

(2)

Having regard to the Treaty
Community, and in particular Article 171 and 172 thereof,

establishing the European

Having regard to the proposal from the Commission,

Council Decision 2006/971/EC of 19 December 2006
concerning the Specific Programme ‘Cooperation’ imple-
menting the Seventh Framework Programme of
the
European Community for research, technological deve-
to
(2007
lopment
2013) (2), underlines
ambitious pan-
European public-private partnerships to accelerate the
development of major technologies and large research
actions at Community level including, in particular, JTI.

the need for

demonstration

activities

and

Having regard to the opinion of the European Parliament,

(3)

The Lisbon Growth and Jobs Agenda underscores the
need to develop favourable conditions for investment
in knowledge and innovation in the Community to
boost competitiveness, growth and jobs.

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

Whereas:

(1)

research,

Programme of

Decision No 1982/2006/EC of the European Parliament
and of the Council of 18 December 2006 concerning the
Seventh Framework
European
the
Community for
technological development
and demonstration activities (2007-2013) (1) (hereinafter
the Seventh Framework Programme),
referred to as
provides for a Community contribution for the estab-
lishment of long term public-private partnerships in the
form of Joint Technology Initiatives (hereinafter referred
to as JTI) which could be implemented through Joint
Undertakings within the meaning of Article 171 of the
Treaty. These JTI were established as a result of 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
Framework
from the
Programme.

Seventh

funding

(4)

(5)

through an ambitious approach,

In March 2007 the European Council concluded that
Member States were determined to promote eco-inno-
vations
taking full
advantage of lead markets in areas such as sustainable
and safe low carbon technologies, renewable energies and
energy and resource efficiency; it recognised the need to
strengthen energy research in particular to accelerate the
notably
competitiveness
energies,
sustainable
renewables,
and the
and low carbon technologies
further development of energy efficiency technologies.

of

In its conclusions of 3 March 2003, of 22 September
2003 and of 24 September 2004, the Council high-
lighted the importance of
further developing actions
following the 3 % Action Plan for research and the inno-
including the development of new
vation policy,
intensifying cooperation between
initiatives aimed at
industry and the public sector in funding research to
enhance trans-national public-private links.

(1) OJ L 412, 30.12.2006, p. 1.

p. 30.

(2) OJ L 400, 30.12.2006, p. 86, as corrected by OJ L 54, 22.2.2007,

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Official Journal of the European Union

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(6)

(7)

(8)

(9)

Programme,

In November 2003 the European Council adopted a
European Initiative for Growth. This Initiative,
in the
Quick-start
Project Area
‘Hydrogen economy’ with a total amount of EUR
2 800 million between 2004 and 2015 and possible
funding from the Research, Technological development
referred to as ‘RTD’)
and Demonstration (hereinafter
Framework Programmes and the Structural Funds.

includes

a

In May 2003 a Hydrogen and Fuel Cell High Level Group
presented a vision report on ‘Hydrogen Energy and Fuel
Cells — a vision of our future’, recommending, inter alia,
the formation of a fuel cell and hydrogen technology
partnership and a substantially increased RTD budget,
as well as a demonstration and pilot programme to
into the
extend the technology validation exercises
market development arena.

to move

In December 2003,
the Commission facilitated the
creation of the European Hydrogen and Fuel Cell Tech-
nology Platform (hereinafter referred to as EHFC TP),
interested stakeholders in a joint
bringing together all
achieving the High Level
effort
Group's vision.
the said Technology
Platform adopted a Strategic Research Agenda and
Deployment Strategy, aimed at accelerating the develop-
ment and market introduction of fuel cell and hydrogen
technologies in the Community.

In March 2005,

towards

The technology challenge facing fuel cells and hydrogen
is of great complexity and scale and the dispersion of
technical competencies is very high. Therefore, in order
to achieve critical mass in terms of scale of activity,
excellence, and potential for innovation, this challenge
needs to be tackled in a focused and coherent way at
EU level. This,
contribution to
and its potential
in particular energy, environment,
Community policies,
economic
transport,
growth, calls for the JTI approach in this sector.

development

sustainable

and

(12)

(13)

(14)

(10)

The objective of the JTI on ‘Fuel Cells and Hydrogen’ is to
implement a programme of RTD activities in Europe in
the fields of fuel cells and hydrogen. These should be
carried out, building on the EHFC TP, with the coope-
ration and involvement of stakeholders from industry
including small and medium-sized enterprises (hereinafter
referred to as SMEs), research centres, universities, and
regions.

to be effectively deployed. Proper emphasis should be put
on long-term research,
advice
provided by the advisory bodies of the Fuel Cells and
Hydrogen Joint Undertaking (hereinafter the FCH Joint
Undertaking).

taking into account

financial

the pooling of

Taking into account
the public-private partnership
involving major stakeholders and its long term activity,
the generated socioeconomic benefits
for European
citizens,
resources and co-
financing in the field of fuel cells and hydrogen RTD
activity provided by the Commission and industry, the
high scientific and technical expertise required, and the
input of industrial property rights, it is vital to set up a
FCH Joint Undertaking under Article 171 of the Treaty.
This legal entity should ensure the coordinated use and
efficient management of the funds assigned to the JTI on
‘Fuel Cells and Hydrogen’. To ensure the appropriate
management of activities initiated but not concluded
during the Seventh Framework Programme the FCH
Joint Undertaking should be set up for a period up to
31 December 2017.

The objectives of the FCH Joint Undertaking should be
pursued by pooling resources from the public and private
sectors to support RTD activities with a view to increase
the overall efficiency of European research efforts and
accelerate the development and deployment of fuel cell
and hydrogen technologies. To that end, the FCH Joint
Undertaking should be able to organise competitive calls
for proposals
the RTD
activities. Research activities should respect fundamental
and
Seventh
ethical principles
Framework Programme.

to implement

for projects

applicable

to the

be

by

represented

the Community

The founding members of the FCH Joint Undertaking
should
the
Commission as public representative and the European
Fuel Cell and Hydrogen Joint Technology Initiative
the
(hereinafter
Industry Grouping
‘Industry Grouping’), which represents the interests of
industry and is open to private companies. A Research
Grouping may become a member of
the FCH Joint
Undertaking.

referred to as

(11)

Significant breakthroughs in a number of
fields are
needed in order for fuel cell and hydrogen technologies

(15)

The running costs of the FCH Joint Undertaking should
be covered equally in cash by the Community and the
Industry Grouping from the outset.
the Research
Grouping is established it should also contribute to the
running costs.

If

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(16)

costs

should be

funded by

the
The operational
Community, industry and other public and private legal
entities participating in the activities. Further financing
options may be available,
inter alia, from the European
Investment Bank, in particular through the Risk-Sharing
Finance Facility developed jointly with the European
Investment Bank and the Commission pursuant
to
Annex III to Decision 2006/971/EC.

(17) According to the Seventh Framework Programme and
Council Decision 2006/975/EC of 19 December 2006
concerning the Specific Programme to be carried out
by means of direct actions by the Joint Research
Centre under the Seventh Framework Programme of
technological
the European Community for
development and demonstration activities
(2007 to
2013) (1), the Joint Research Centre may participate in
joint
technology initiatives where relevant. The Joint
Research Centre has specific expertise in the fields of
fuel cells and hydrogen, and therefore, it is appropriate
its possible contribution to joint tech-
to clarify that
nology initiatives is not intended to form part of the
Community contribution foreseen in the legal acts
setting up the joint technology initiatives.

research,

(18)

(19)

The FCH 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,
the Council. However,
on the
recommendation of
account should be taken of
the specificities resulting
from the nature of JTI as a public-private partnership
and in particular from the private-sector contribution
to the budget.

its

rules which take into account

The FCH 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) and
subject to prior consent with the Commission, specific
financial
specific
operating needs arising, in particular, from the need to
combine Community and private funding to support
RTD activities in an efficient and timely manner.
In
order to ensure a harmonised treatment between the
the FCH Joint Undertaking research
participants of
activities and those of
the
it is appropriate that
Seventh Framework Programme,
for
value added tax should not be an eligible cost
in line with Regulation (EC) No
Community funding,
1906/2006 of
the
Council of 18 December 2006 laying down the rules
for the participation of undertakings, research centres
Seventh
actions
and

the European Parliament and of

the indirect actions of

universities

under

the

in

(1) OJ L 400, 30.12.2006, p. 368, as corrected by OJ L 54, 22.2.2007,

p. 126.

Framework Programme and for the dissemination of
research results (2007-2013) (3).

(20)

The rules for the organisation and operation of the FCH
Joint Undertaking should be laid down in the Statutes of
the FCH Joint Undertaking as part of this Regulation.

(21)

The intellectual property rights policy of the FCH Joint
Undertaking should provide for rights ownership for the
the
participants of
industrial property created through the FCH Joint Tech-
nology Initiative, and should enable its proper exploi-
tation.

the projects as

the owners of

European

Communities

(22) 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
interests (4),
the
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
interests
against fraud and other irregularities (5), and Regulation
(EC) No 1073/1999 of the European Parliament and of
the Council of 25 May 1999 concerning investigations
concluded by the European Anti-Fraud Office (OLAF) (6).

the European Communities'

financial

financial

(23) As a body endowed with legal personality, the FCH Joint
Undertaking should be accountable for its actions. Where
relevant, the Court of Justice of the European Commu-
nities should be competent for resolution of disputes
arising from the activities of the FCH Joint Undertaking.

(24)

Since the objective of this Regulation, namely the estab-
lishment of the FCH Joint Undertaking, cannot be suf-
ficiently achieved by the Member States due to the trans-
national nature and magnitude of the research challenges
identified, which requires the pooling of complementary
knowledge and financial resources across sectors and
borders
achieved at
Community level, the Community may adopt measures,
in accordance with the principle of subsidiarity as set out
In accordance with the
in Article 5 of
principle of proportionality, as set out in that Article,
this Regulation does not go beyond what is necessary
in order to achieve this objective,

and can therefore be better

the Treaty.

(3) OJ L 391, 30.12.2006, p. 1.
(4) OJ L 312, 23.12.1995, p. 1. Regulation as last amended by
L 279,

(EC) No 1233/2007 (OJ

Commission Regulation
23.10.2007, p. 10).

(2) OJ L 248, 16.9.2002, p. 1. Regulation as last amended by Regu-

lation (EC) No 1525/2007 (OJ L 343, 27.12.2007, p. 9).

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

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HAS ADOPTED THIS REGULATION:

Article 1

Establishment

1.
For the implementation of the Joint Technology Initiative
(hereinafter referred to as JTI) on Fuel Cells and Hydrogen, a
Joint Undertaking within the meaning of Article 171 of the
Treaty (hereinafter referred to as the FCH Joint Undertaking)
is hereby set up for a period up to 31 December 2017.

The seat of the FCH Joint Undertaking shall be located in

2.
Brussels, Belgium.

Article 2

Objectives

The FCH Joint Undertaking shall contribute to the imple-
the Seventh Framework Programme and in
themes for
‘Nanosciences, Nanotechnologies, Materials and New
‘Environment
(including Climate

1.
mentation of
particular the Specific Programme ‘Cooperation’
‘Energy’,
Production Technologies’,
Change)’, and ‘Transport (including Aeronautics)’.

2.

It shall, in particular:

It may,

capacity accorded to legal persons under the laws of those
States.
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 FCH Joint Undertaking, as set out in the
Annex hereto, constitute an integral part of this Regulation and
are hereby adopted.

Article 5

Community contribution

The maximum Community contribution to the FCH Joint
1.
Undertaking covering running costs and operational costs shall
be EUR 470 million. The contribution shall be paid from the
appropriations in the general budget of the European Union
‘Nanosciences, Nanotechnologies,
allocated to the ‘Energy’,
‘Environment
Materials and New Production Technologies’,
(including Climate Change)’, and ‘Transport
(including Aero-
nautics)’ themes of the Specific Programme ‘Cooperation’
im-
plementing the Seventh Framework Programme according to
the provisions of Article 54(2)(b) of Regulation (EC, Euratom)
No 1605/2002.

(a) aim at placing Europe at the forefront of

fuel cell and
hydrogen technologies worldwide and at enabling the
market breakthrough of fuel cell and hydrogen technologies,
thereby allowing commercial market
forces to drive the
substantial potential public benefits;

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

and

countries

(b) support Research, Technological development and Demon-
in the Member
stration (hereinafter referred to as RTD)
Seventh
associated with
States
Framework Programme (hereinafter referred as Associated
countries)
to overcome the
market failure and focus on developing market applications
and thereby facilitate additional industrial efforts towards a
rapid deployment of fuel cells and hydrogen technologies;

in a coordinated manner

the

(c) support the implementation of the RTD priorities of the JTI
on Fuel Cells and Hydrogen, notably by awarding grants
following competitive calls for proposals;

(d) aim to encourage increased public and private research
investment in fuel cells and hydrogen technologies in the
Member States and Associated countries.

Article 3

Legal status

The FCH Joint Undertaking shall be a Community body and
shall have legal personality. In each of the Member States of the
it shall enjoy the most extensive legal
European Community,

3.
The Community contribution to the FCH Joint Under-
taking used to fund projects shall be allocated following open
and competitive calls for proposals and evaluation with the
assistance of independent experts.

4.
Any possible financial or in-kind contribution from the
Joint Research Centre to the FCH Joint Undertaking shall not be
considered as part of the Community contribution referred to in
paragraph 1.

Article 6

Financial rules

1.
The FCH Joint Undertaking shall adopt specific financial
rules in accordance with Article 185(1) of Regulation (EC,
Euratom) No 1605/2002. They may depart
from the rules
laid down in Commission Regulation (EC, Euratom) No
2343/2002 of 19 November 2002 on the
framework
Financial Regulation for the bodies referred to in Article 185
the Financial Regulation (1) where the specific operating
of
needs of the FCH Joint Undertaking so require and subject to
prior consent of the Commission.

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

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The FCH Joint Undertaking shall have its own internal

2.
audit capability.

Article 7

Staff

The Staff Regulations of Officials of

the European
1.
Communities,
the Conditions of Employment of Other
Servants of the European Communities and the rules adopted
jointly by the institutions of the European Community for the
purpose of applying these Staff Regulations and Conditions of
Employment shall apply to the staff of the FCH Joint Under-
taking and its Executive Director.

2. Without prejudice to paragraph 3 of
this Article and
Article 6(3) of the Statutes, the FCH 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.

adopt

The Governing Board shall,

in agreement with the
3.
Commission,
the necessary implementing measures
referred to in Article 110 of the Staff Regulations of Officials
of
and the Conditions of
Employment of Other Servants of the European Communities.

the European Communities,

In the case of non-contractual

the FCH 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.

liability,

3.
Any payment by the FCH 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 FCH Joint Undertaking and shall be
covered by the resources of the FCH Joint Undertaking.

The FCH Joint Undertaking shall be solely responsible for

4.
meeting its obligations.

Article 10

Jurisdiction of the Court of Justice and applicable law

1.

The Court of Justice shall have jurisdiction:

(a)

in any dispute between the members which relates to the
subject matter of this Regulation and the Statutes referred to
in Article 4;

4.
The staff resources shall be determined in the estab-
lishment plan of the FCH Joint Undertaking that will be set
out in its annual budget.

(b) pursuant to any arbitration clause contained in agreements
or contracts concluded by the FCH Joint Undertaking;

5.
The staff of the FCH 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 Under-
taking.

(c)

in actions brought against
including decisions of
provided for in Articles 230 and 232 of the Treaty;

the FCH Joint Undertaking,
the conditions

its bodies, under

All cost related to the staff shall be borne by the FCH

6.
Joint Undertaking.

(d) in disputes relating to compensation for damage caused by
the staff of the FCH Joint Undertaking in the performance
of their duties.

Article 8

Privileges and Immunities

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 FCH Joint Undertaking is located shall apply.

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

Article 9

Liability

The contractual

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

liability of

Article 11

Report, evaluation and discharge

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

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By 30 May 2011, but in any case no later than 30 June
2.
2011, as well as by 31 December 2013, the Commission shall
conduct an interim evaluation of the FCH Joint Undertaking
independent experts, on the basis of
with the assistance of
the
the terms of reference established after consultation of
FCH Joint Undertaking. These evaluations
the
shall cover
quality and efficiency of
the FCH Joint Undertaking and
progress towards its objectives. The Commission shall commu-
nicate the conclusions thereof, accompanied by its observations
and, where appropriate, proposals to amend this Regulation,
including the possible early termination of the Joint Under-
taking, to the European Parliament and to the Council.

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

4.
Discharge for the implementation of the budget of the
FCH Joint Undertaking shall be given by the European
Parliament,
in
accordance with a procedure provided for by the financial
rules of the FCH Joint Undertaking.

recommendation

the Council,

upon

of

Article 12

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

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

commissioning appropriate

internal

the appropriate
the FCH Joint Undertaking,
on behalf of
controls and, in the event of the detection of irregularities, to
impose dissuasive and proportionate penalties.

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

Article 13

Confidentiality

Without prejudice to Article 14, the FCH Joint Undertaking
shall ensure the protection of sensitive information whose
disclosure could damage the interests of
its members or of
participants in the activities of the FCH Joint Undertaking.

Article 14

Transparency

Regulation (EC) No 1049/2001 of

European
1.
the Council of 30 May 2001 regarding
Parliament and of
access
to European Parliament, Council and Commission
documents (3), shall apply to documents held by the FCH
Joint Undertaking.

the

In case of

2.
irregularities committed by the FCH Joint
Undertaking or its staff, the members of the FCH Joint Under-
taking shall reserve the right to recover any amount unduly
spent,
including by a reduction or suspension of subsequent
contributions to the FCH Joint Undertaking.

3.
For the purposes of combating fraud, corruption and any
other illegal activities, Regulation (EC) No 1073/1999 shall
apply.

4.
The FCH Joint Undertaking shall carry out on-the-spot
checks and financial audits among the recipients of the FCH
Joint Undertaking's public funding.

The Commission and/or the Court of Auditors may, as
5.
necessary, carry out on-the-spot checks among the recipients of
the FCH Joint Undertaking's funding and the agents responsible
for its allocation. To that end, the FCH Joint Undertaking shall
ensure that grant agreements and contracts provide for the right
of the Commission and/or the Court of Auditors to carry out,

The FCH Joint Undertaking shall adopt
Regulation

2.
arrangements
implementing
for
1049/2001 by 15 December 2008.

the practical
(EC) No

3.
Decisions taken by the FCH 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 Court of Justice, under the conditions laid down in
Articles 195 and 230 of the Treaty respectively.

Article 15

Intellectual property

The FCH Joint Undertaking shall adopt distinct rules governing
the protection, use and dissemination of research results based
on the principles of Regulation (EC) No 1906/2006 (hereinafter
referred to as
the Seventh
Framework Programme), as referred to in Article 25 of the
Statutes which ensure that, where appropriate,
intellectual
property generated in RTD activities under this Regulation is
protected, and that research results are used and disseminated.

the Rules of Participation of

(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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Article 16

Preparatory actions

The Commission shall be responsible for

1.
the estab-
lishment and initial operation of the FCH 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 its members and 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 6(4) 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 FCH Joint
Undertaking once approved by the Governing Board and may

including staff contracts

following the
conclude contracts,
the FCH Joint Undertaking establishment plan.
adoption of
The Commission authorising officer may
all
payments covered by the credits provided in the general
budget of the FCH Joint Undertaking.

authorise

Article 17

Support from the host State

A host agreement shall be concluded between the FCH Joint
Undertaking and Belgium concerning office accommodation,
privileges and immunities and other support to be provided
by Belgium to the FCH Joint Undertaking.

Article 18

Entry into force

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, 30 May 2008.

For the Council
The President

A. VIZJAK

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ANNEX

STATUTES OF THE FUEL CELLS AND HYDROGEN JOINT UNDERTAKING

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

Article 1

Main tasks and activities

(a)

to ensure the establishment and the efficient management of the Joint Technology Initiative on Fuel Cells and
Hydrogen;

(b)

to reach the critical mass of research effort to give confidence to industry, public and private investors, decision-
makers and other stakeholders to embark on a long-term programme;

(c)

to leverage further industrial, national and regional RTD investment;

(d)

to integrate RTD, and focus on achieving long-term sustainability and industrial competitiveness targets for cost,
performance and durability and overcome critical technology bottlenecks;

(e)

to stimulate innovation and the emergence of new value chains including SMEs;

(f)

to facilitate the interaction between industry, universities and research centres including on basic research;

(g)

to promote the involvement of SMEs in its activities,
Programme;

in line with the objectives of the Seventh Framework

(h)

to encourage the participation of institutions from all Member States and Associated countries;

(i)

(j)

to perform broadly-conceived socio-techno-economic research to assess and monitor technological progress and non-
technical barriers to market entry;

to perform research to support the development of new, and review existing regulations and standards to eliminate
artificial barriers to market entry and support interchangeability, inter-operability, cross-border hydrogen trading, and
export markets whilst ensuring safe operation and not inhibiting innovation;

(k)

to undertake communication and dissemination activities, and to provide reliable information to improve the public
awareness and create public acceptance concerning hydrogen safety, and the benefits from the new technologies to
the environment, security of supply, energy costs, and employment;

(l)

to establish and implement a Multiannual Implementation Plan;

(m) to commit the Community funding and mobilise the private-sector and other public-sector resources needed to

implement its RTD activities;

(n)

to ensure the sound operation of the RTD activities and sound financial management of the resources;

(o)

to communicate and disseminate information on the projects, including the names of the participants, the results
from the RTD activities, and the amount of the financial contribution from the FCH Joint Undertaking;

(p)

to notify the legal entities that have concluded a Grant Agreement with the FCH Joint Undertaking of the potential
borrowing opportunities from the European Investment Bank, in particular the Risk Sharing Finance Facility set up
under the Seventh Framework Programme;

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(q)

to ensure a high level of transparency and fair competition under equal access conditions for all applicants to the
RTD activities of the FCH Joint Undertaking, whether or not they are members of the Research Grouping or the
Industry Grouping, (in particular SMEs);

(r)

to follow the international developments in the area and engage in international cooperation when appropriate;

(s)

to develop close cooperation and ensure coordination with the Research Framework Programme and other European,
national and trans-national activities, bodies and stakeholders;

(t)

to monitor progress toward the objectives of the FCH Joint Undertaking;

(u)

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

Article 2

Members

1.

The founding members (hereinafter referred to as the founding members) of the FCH Joint Undertaking shall be:

(a)

the Community, represented by the Commission, and

(b) upon acceptance of

these Statutes,

the European Fuel Cell and Hydrogen Joint Technology Initiative Industry
Grouping Aisbl, a non-profit organisation established under Belgian law (registration number: 890025478, with its
permanent office in Brussels, Belgium) whose purpose is to contribute to achieving the objectives of the FCH Joint
Undertaking (hereinafter referred to as the Industry Grouping).

2.

The Industry Grouping shall:

— ensure that its contribution to the resources of the FCH Joint Undertaking, according to Article 12 of these Statutes is
provided in advance as a cash contribution to cover 50 % of the running costs of the FCH Joint Undertaking and
transferred to the budget of the FCH Joint Undertaking before the start of each financial year,

— ensure that industry’s contribution to the achievement of the RTD activities funded by the FCH Joint Undertaking at

least matches the Community contribution,

— be open to membership, on fair conditions, by any private legal entity (including SMEs), formed in accordance with
the law of a Member State or Associated country and having its registered office, central administration or principal
place of business within the above area, provided it is active in the field of fuel cells and hydrogen in Europe, and is
committed to contribute to the objectives and resources of the FCH Joint Undertaking.

A Research Grouping may become a member, after the establishment of the FCH Joint Undertaking, provided it has

3.
accepted these Statutes.

The Research Grouping shall:

— be open to membership, on fair conditions, to any research organisation including universities and research centres
established in a Member State or an Associated country excluding those representing the interests of industry or those
set up by a company for the sole purpose of undertaking research for this company,

— be a non-profit organisation whose purpose is to contribute to achieving the objectives of the FCH Joint Undertaking,

— be legally established under Belgian law and operate under its registered by-laws duly adopted to pertain to the JTI,

— ensure that its contribution to the resources of the FCH Joint Undertaking is provided in advance as a cash
contribution to cover 1/12 of the running costs of the FCH Joint Undertaking and transferred to the budget of
the FCH Joint Undertaking before the start of each financial year.

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Article 3

Accession and changes to membership

Possible membership application by the Research Grouping to the FCH Joint Undertaking shall be addressed to the

1.
Governing Board for its approval.

2.
Decisions of the Governing Board on accession of the Research Grouping shall be made taking into account the
relevance and potential added value of the Research Grouping for the achievement of the objectives of the FCH Joint
Undertaking. The Commission shall provide timely information to the Council on the assessment and, where applicable,
on the decision of the Governing Board.

3. Membership of the FCH Joint Undertaking may not be transferred to a third party unless the prior agreement of the
Governing Board is given.

A founding member may terminate its membership of the FCH Joint Undertaking. The FCH Joint Undertaking shall

4.
then be wound up as provided for in Article 27.

The Research Grouping may terminate its membership of the FCH Joint Undertaking. The termination shall become
5.
effective and irrevocable six months after notification to the founding members following which the leaving member shall
be discharged from any obligations other than those approved by the FCH Joint Undertaking prior to the membership
termination.

The founding members and the Research Grouping,

6.
‘members’.

if

it becomes a member, are hereinafter referred to as

1.

The bodies of the FCH Joint Undertaking shall be:

Article 4

Bodies

(a)

the Governing Board;

(b) the Executive Director;

(c)

the Scientific Committee.

2.

In case a specific task is not assigned to one of the bodies, the Governing Board shall be the competent one.

The FCH States Representatives Group and the Stakeholders General Assembly shall be external advisory bodies to

3.
the FCH Joint Undertaking.

Composition and decision-making process:

Article 5

Governing Board

the Governing Board shall be composed of six representatives of the Industry Grouping and of six representatives of
the Commission;

1.

(a)

(b) the Commission shall, in case the Research Grouping is established, transfer one seat to its representative;

(c) each seat in the Governing Board gives one voting right. The vote of the Commission shall be indivisible. The
members shall use their best efforts to achieve consensus. Failing consensus, the Governing Board shall take its
decisions by a three-quarters majority;

(d) at least one of the representatives appointed by the Industry Grouping shall represent SMEs;

(e)

the Governing Board shall elect its chairperson. The chairperson shall be elected for two years;

(f)

the chairperson shall convene the Stakeholders’ General Assembly;

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(g) the Secretary of the Governing Board shall be the Executive Director. The Executive Director shall take part in the

deliberations, but shall have no voting rights;

(h) the representatives of the members shall not be personally liable for actions undertaken in their capacity as repre-

sentatives on the Governing Board;

(i)

the Governing Board shall adopt its rules of procedure in accordance with paragraph 3.

2.

Roles and tasks

The Governing Board shall have overall responsibility for the operations of the FCH Joint Undertaking and shall oversee
the implementation of its activities.

The Governing Board shall in particular:

(a)

assess applications and decide changes in membership in accordance with Article 3;

(b) decide on the termination of the membership in the FCH Joint Undertaking of any member which does not fulfil its

obligations;

(c)

approve the annual and multiannual implementation plans and the corresponding expenditure estimates, as proposed
by the Executive Director after having consulted the FCH States Representatives Group and the Scientific Committee;

(d) approve the annual budget, including the staff establishment plan;

(e)

approve the annual activity report, including the corresponding expenditure;

(f)

approve the annual accounts and the balance-sheet;

(g)

arrange for the establishment of the internal audit capabilities of the FCH Joint Undertaking;

(h) adopt the financial rules of the FCH Joint Undertaking in accordance with Article 6 of this Regulation;

(i)

approve the initiatives to amend these Statutes in accordance with Article 26;

(j)

appoint, dismiss or replace the Executive Director, provide guidance to the Executive Director and monitor the
Executive Director’s performance;

(k) approve the organisational structure of the Programme Office as proposed by the Executive Director;

(l)

approve the methodology for assessing the in-kind contributions in accordance with the principles referred to in
Article 12;

(m) approve the guidelines on evaluation and selection of project proposals as proposed by the Executive Director;

(n) approve the list of project proposals selected for funding;

(o) approve the model grant agreement;

(p) approve service and supply contracts;

(q) approve the annual

independent assessment of the level of in-kind contribution before it is presented to the

Commission;

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(r)

assign any task which is not specifically allocated to one of the bodies of the FCH Joint Undertaking;

(s)

approve procedures of the FCH Joint Undertaking, including the rules on the Intellectual Property Rights in line with
Article 25;

(t)

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

(u) approve the calls for proposals;

(v)

supervise the overall activities of the FCH Joint Undertaking.

3.

Rules of procedure

(a) The Governing Board shall hold its ordinary meeting twice a year. It may hold any extraordinary meeting at the
request of the Commission or a majority of the representatives of the Industry Grouping or at the request of the
chairperson. The meetings shall normally take place at the Seat of the FCH Joint Undertaking. The meetings of the
Governing Board shall be convened by its Chairperson.

(b) The Chairperson of the FCH States Representatives Group shall have the right to attend meetings of the Governing

Board as an observer.

(c) The Governing Board may invite observers on a case-by-case basis, without voting rights, to attend their meetings, in

particular representatives of the regions and of regulatory bodies.

Article 6

Executive Director

1.
The Executive Director shall be the chief executive responsible for the day-to-day management of the FCH Joint
Undertaking in accordance with the decisions of the Governing Board. In that context, he/she shall regularly inform as
well as respond to any specific ad hoc requests for information from the Governing Board and the Scientific Committee.

The Executive Director shall be the legal representative of the FCH Joint Undertaking. He/she shall perform his/her

2.
tasks with independence, and shall be accountable to the Governing Board.

3.

The Executive Director shall exercise, in respect of the staff, the powers laid down in Article 7(2) of this Regulation.

4.
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 Journal of 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.

5.

The Executive Director shall in particular:

(a)

submit to the Governing Board the Annual and Multiannual Implementation Plans and the corresponding expen-
diture estimates;

(b)

submit to the Governing Board the annual budget proposal, including the staff establishment plan;

(c)

submit to the Governing Board the annual activity report, including the corresponding expenditure;

(d)

submit to the Governing Board the annual accounts and the balance-sheet;

(e)

submit for the approval of the Governing Board, the arrangements and guidelines for evaluation and selection of
project proposals, including procedures for the dissemination of research results;

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(f)

supervise the management of the calls for project proposals;

(g)

submit for the approval of the Governing Board the list of project proposals selected for funding;

(h)

submit for the approval of the Governing Board the list of Grant Agreements to be concluded;

(i)

approve and sign the individual grant agreements established in line with the model grant agreement. Grant
agreements with provisions that do not fully correspond to the model grant agreement shall be submitted to the
Governing Board for approval;

(j)

submit for the approval of the Governing Board the service and supply contracts to be concluded;

(k)

submit to the Governing Board his/her proposal(s) concerning the organisation structure of the Programme Office
and organise, direct and supervise the staff of the FCH Joint Undertaking;

(l)

organise meetings of the Governing Board;

(m) ensure the secretariat for the Stakeholders’ General Assembly;

(n) attend as appropriate the meetings of the Scientific Committee as observer;

(o)

if appropriate, set up ad hoc expert groups, as decided by the Governing Board, to gather advice from experts;

(p) monitor public and private financing and have the responsibility to propose to the Governing Board any corrective

action necessary to maintain the required balance;

(q) assess the level of in-kind contribution in accordance with the principles referred to in Article 12 (the first one at the
end of the second financial year after the start of the FCH Joint Undertaking), and take responsibility for the
assessment results being approved by the Governing Board and presented to the Commission within four months
of the end of each financial year;

(r) provide to the Governing Board any other information that may be requested;

(s) provide the Commission with any information and service necessary for the mid-term and final reviews;

(t)

be responsible for risk assessment and risk management;

(u) propose to the Governing Board any insurance that may be necessary for the FCH Joint Undertaking to take out in

order to meet its obligations;

(v) be responsible for preparing, negotiating and concluding Grant Agreements for the implementation of the RTD

activities, and service and supply contracts necessary for the operations of the FCH Joint Undertaking;

(w) be responsible for the preparatory work necessary for securing the annual discharge from the European Parliament.

Article 7

Programme Office

The Programme Office shall, under the responsibility of the Executive Director, execute all responsibilities of the

1.
FCH Joint Undertaking.

2.

The Programme Office shall in particular:

(a) manage the launch of the calls for project proposals as foreseen in the annual implementation plan, the evaluation
with the assistance of independent experts, and selection of the project proposals, the negotiation of the selected
project proposals, and the follow-up and administration of the grant agreements, including their coordination;

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(b) be in charge of the establishment and management of the appropriate accounting system for the calculation of the

actual public and private contributions to the projects;

(c) provide the Governing Board and all other subsidiary bodies with relevant documentation and logistical support;

(d) prepare the multiannual implementation plan and the corresponding expenditure estimates;

(e) prepare the annual budget proposal, including the staff establishment plan;

(f) prepare the annual activity report, including the corresponding expenditure;

(g) prepare the annual accounts and the balance-sheet;

(h) prepare all documents necessary for the mid-term and final review;

(i) manage calls for tenders for goods and services according to the financial rules of the FCH Joint Undertaking;

(j) perform any other tasks entrusted or delegated to it by the Governing Board.

Article 8

Scientific Committee

The Scientific Committee is an advisory body to the Governing Board. The Scientific Committee shall conduct its

1.
activities with the support of the Programme Office.

2.

The Scientific Committee shall consist of no more than nine members.

The members shall reflect a balanced representation of world class expertise from academia, industry and regulatory
3.
bodies. Collectively, the Scientific Committee members shall have the scientific competencies and expertise covering the
complete technical domain needed to make strategic science-based recommendations regarding the FCH Joint Under-
taking.

4.
The Governing Board shall establish the specific criteria and selection process for the composition of the Scientific
Committee and shall appoint its members. The Governing Board shall take into account the potential candidates
proposed by the FCH States Representative Group.

5.

A chairperson shall be elected by consensus of the Scientific Committee from among its members.

6.

The Scientific Committee shall have the following tasks:

(a) advise on the scientific priorities for the annual and Multiannual Implementation Plans proposal;

(b) advise on the scientific achievements described in the annual activity report;

(c) advise on the composition of the peer review committees.

7.

The Scientific Committee shall meet at least once a year and shall be convened by the chairperson.

The Scientific Committee may, with the agreement of the chairperson, invite non-member persons to participate in

8.
its meetings.

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Article 9

FCH States Representatives Group

1.

The FCH States Representatives Group shall have an advisory role for the FCH Joint Undertaking.

The FCH States Representatives Group shall consist of one representative of each Member State and of each

2.
Associated country. It shall elect a chairperson among its members.

3.

It shall in particular review information and provide opinions on the following topics:

(a) programme progress in the FCH Joint Undertaking;

(b) compliance and respect of targets;

(c) updating of strategic orientation;

(d) links to Framework Programme Collaborative Research;

(e) planning and outcome of calls for proposals and tenders;

(f)

involvement of SMEs.

4.

It shall also provide input to the Joint Undertaking on the following:

(a) status of and interface to Joint Undertaking activities to relevant national research programmes and identification of

potential areas of cooperation;

(b) specific measures taken at national

level with regard to dissemination events, dedicated technical workshops and

communication activities.

5.
The FCH States Representatives Group may issue, on its own initiative, recommendations to the FCH Joint Under-
taking on technical, managerial and financial matters, in particular when these affect national interests. The FCH Joint
Undertaking shall inform the FCH States Representatives Group of the follow up it has given to such recommendations.

6.
The FCH States Representatives Group shall meet at least bi-annually and shall be convened by the Joint Under-
taking. Extraordinary meetings can be convened to deal with specific matters of major relevance to FCH Joint Undertaking
activities. These meetings shall be called by the FCH Joint Undertaking either on its own initiative or upon request from
FCH States Representatives Group.

The Executive Director, the chairman of the Governing Board and/or their representatives and a Commission

7.
representative shall attend the meetings.

8.

The FCH States Representatives Group shall adopt its rules of procedure.

Article 10
Stakeholders’ General Assembly

The Stakeholders’ General Assembly shall have an advisory role to the FCH Joint Undertaking. It shall be open to all
1.
public and private stakeholders, international interest groups from Member States, Associated countries as well as from
third countries. It shall be convened once a year.

The Stakeholders’ General Assembly shall be informed of the activities of the FCH Joint Undertaking and shall be

2.
invited to provide comments.

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Article 11

Internal auditing function
The functions entrusted by Article 185(3) of Regulation (EC, Euratom) No 1605/2002 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 FCH Joint Undertaking.

Article 12

Sources of financing

The FCH Joint Undertaking shall be jointly funded by the Members through financial contributions paid in partial

1.
instalments, and in-kind contributions from legal entities participating in the activities.

Any other contribution to the FCH Joint Undertaking may also be accepted. The Governing Board shall decide on their
acceptance and utilisation.

2.
The running costs of the FCH Joint Undertaking shall be covered equally in cash by the Community and the
Industry Grouping from the outset. As soon as the Research Grouping becomes a member of the FCH Joint Undertaking,
it shall contribute to 1/12 of the running costs. In such a case, the Community contribution to running costs will
decrease correspondingly.

The total Community contribution to the FCH Joint Undertaking running costs shall not exceed EUR 20 million. If part
of the contribution from the Community is not used, it may be available for the activities of the FCH Joint Undertaking.

3.
The operational costs of the FCH Joint Undertaking shall be covered through the financial contribution of the
Community, and through in-kind contributions from the legal entities participating in the activities. The industry
contribution shall at least match the Community’s contribution. Other contributions to co-funding of activities will be
considered as receipts in accordance with the Rules of Participation of the Seventh Framework Programme.

All resources of the FCH Joint Undertaking and its activities shall be devoted to the objectives provided for in

4.
Article 2 of this Regulation.

Any interest yielded by the contributions once received by the FCH Joint Undertaking shall be considered to be its

5.
revenue.

Any interest generated on the advance payment of grants paid out by the FCH Joint Undertaking shall be considered

6.
to be a receipt to the project consortium.

7.
The level of the in-kind contributions, calculated on a yearly basis, shall be assessed once a year. The methodology
for evaluating contributions in kind shall be defined by the FCH Joint Undertaking in compliance with its financial rules
and based on the Rules for Participation of the Seventh Framework Programme. The first assessment shall be initiated at
the end of the second financial year after the start of the FCH Joint Undertaking. The assessment shall thereafter be
performed each financial year by an independent auditor. The results of the assessment shall be presented to the
Commission within four months of the end of each financial year.

the assessment establishes that

If
Commission shall reduce its contribution the following year.

the in-kind contribution from industry does not reach the required level,

the

If it is established that the in-kind contribution from industry does not reach the required level for two consecutive years,
the Commission may propose to the Council to terminate the FCH Joint Undertaking.

The FCH Joint Undertaking shall own all assets generated by it or transferred to it for the fulfilment of its objectives

8.
provided for in Article 2 of this Regulation.

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Article 13

Participation in activities

Participation in projects shall be open to other legal entities and international organisations once the minimum

1.
conditions have been satisfied.

2.

The minimum conditions to be fulfilled for projects funded by the FCH Joint Undertaking shall be the following:

(a) at least three legal entities must participate, each of which must be established in a Member State or Associated

country, and no two of which may be established in the same Member State or Associated country;

(b) all three legal entities must be independent of each other as defined in Article 6 of the Rules of Participation of the

Seventh Framework Programme;

(c) at least one legal entity must be a member of the Industry Grouping or the Research Grouping.

The legal entities wishing to participate in a project shall form a consortium and appoint one of their members to

3.
act as its coordinator.

In general, the coordinator should come from the Industry Grouping or from the Research Grouping if such Research
Grouping becomes a member of the Joint Undertaking.

The minimum condition for service and supply contracts, support actions, studies and training activities funded by

4.
the FCH Joint Undertaking shall be the participation of one legal entity.

Article 14

Implementation of RTD activities

The FCH Joint Undertaking shall support RTD activities following open and competitive calls for proposals,

1.
independent evaluation, and the conclusion for each project of a Grant Agreement and a Consortium Agreement.

In exceptional cases the FCH Joint Undertaking may issue calls for tenders, if it is deemed necessary for the effective

2.
pursuance of the research objectives.

The FCH Joint Undertaking shall define the procedures and mechanisms for the implementation, supervision and

3.
control of Grant Agreements.

4.

The Grant Agreement shall:

— provide for the appropriate arrangements for the implementation of the RTD activities,

— provide for the appropriate financial arrangements and the rules relating to intellectual property rights policy as

referred to in Article 25,

— govern the relationship between the project consortium and the FCH Joint Undertaking.

The Consortium Agreement shall be concluded by the project participants prior to the conclusion of the Grant

5.
Agreement. It shall:

— provide for the appropriate arrangements for the implementation of the Grant Agreement,

— govern the relationship between the participants in a project, in particular the Intellectual Property Rights provisions.

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Article 15

Funding of activities

1.

The following shall be eligible for funding:

(a)

legal entities established in a Member State or an Associated country;

(b) international organisations, which have legal personality under international public law, as well as any specialised

agencies set up by such organisations;

(c)

legal entities from third countries, provided that the Governing Board considers their participation to be of particular
benefit to the project.

In order to be considered eligible for Community funding, costs incurred in the implementation of research and

2.
development activities shall be excluded of value added tax.

3.
The upper funding limits of the Community financial contribution in projects shall be aligned to comply with those
laid down by the Rules for Participation of the Seventh Framework Programme. In case lower levels of funding will be
necessary to comply with the matching principles referred to in Article 12(3), the decreases shall be fair and balanced
proportionally with the above mentioned upper funding limits of the Rules of Participation of the Seventh Framework
Programme for all categories of participants in each individual project.

Article 16

Financial commitments

Financial commitments of the FCH Joint Undertaking shall not exceed the amount of financial resources available or
committed to its budget by its Members.

Article 17

Financial revenues

Except when the FCH Joint Undertaking is wound up pursuant to Article 27, any excess revenue over expenditure shall
not be paid to the Members of the FCH Joint Undertaking.

The financial year shall correspond to the calendar year.

Article 18

Financial year

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

Article 19

Financial implementation

Article 20

Financial reporting

1.
Every year, the Executive Director shall present to the Governing Board a preliminary draft annual budget plan,
which shall include a forecast of annual expenditure for the following two years. Within this forecast, the estimates of
revenue and expenditure for the first of those two financial 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 FCH 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 forthwith communicate to the Executive Director their comments on
the preliminary draft budget and in particular on the estimates of resources and expenditure for the following year.

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Taking into account the comments received from the members of the Governing Board, the Executive Director shall

3.
prepare the draft budget for the following year and submit it to the Governing Board for approval.

The annual Budget Plan and the Annual

4.
Governing Board of the FCH Joint Undertaking by the end of the previous year.

Implementation Plan for a particular year shall be adopted by the

5. Within two months after 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.

Article 21

Planning and reporting

1.
The Multiannual Implementation Plan shall describe the rolling programme of RTD activities of the FCH Joint
Undertaking. The Annual Implementation Plan shall include a detailed plan of the RTD activities and corresponding
expenditure estimates for the coming year. Once approved by the Governing Board, a publishable version of the Annual
Implementation Plan shall be made publicly available.

An annual activity report shall present progress made by the FCH Joint Undertaking in each calendar year,

2.
in
particular in relation to the Annual Implementation Plan for that year. It shall also include information on the performed
RTD activities, the costs and the contribution of the FCH Joint Undertaking for any individual project, the participation of
SMEs as well as on other activities during the previous year and the corresponding expenditure. The Annual Activity
Report shall be presented by the Executive Director together with the Annual Accounts and balance sheets. Once
approved by the Governing Board, the Annual Activity Report shall be made public.

Article 22

Service and supply contracts

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

Article 23

Liability of members and insurance

The financial

1.
contribution already made for the running costs.

liability of the members for the debts of the FCH Joint Undertaking shall be limited to their

2.

The FCH Joint Undertaking shall take out and maintain appropriate insurance.

Article 24

Conflict of interest

The FCH Joint Undertaking and its bodies shall avoid any conflict of interest in the implementation of their

1.
activities.

In particular care must be taken where a conflict of interest may occur for the representatives serving in the

2.
Governing Board.

Article 25

Intellectual property rights policy

1.
The FCH Joint Undertaking shall adopt its general rules governing the Intellectual Property Rights policy of the FCH
Joint Undertaking in accordance with Article 15 of this Regulation that will be incorporated in the Grant Agreements and
Consortium Agreements.

2.
The objective of the Intellectual Property Rights policy of the FCH Joint Undertaking is to generate foreground
information, promote its exploitation, use and dissemination for rapid development towards commercial results, to
achieve fair allocation of rights, to reward innovation, and to achieve a broad participation of private and public
entities in projects.

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The Intellectual Property Rights policy shall reflect the following principles:

3.
— each participant in a project shall remain the owner of the background it introduces into a project, and shall remain
the owner of the foreground it generates in a project, unless otherwise mutually agreed in writing by the participants
in a project. The terms and conditions of access rights and licenses with regard to the background or foreground, shall
be defined in the Grant Agreement and the Consortium Agreement of the project concerned,

— the participants in a project shall undertake to disseminate and allow the use of foreground under terms and
conditions defined in the Grant Agreement and the Consortium Agreement, taking into account the protection of
their intellectual property rights, confidentiality obligations and, in particular the specific nature of the FCH Joint
Undertaking as a public-private partnership.

Article 26

Amending the Statutes

Any Member of the FCH Joint Undertaking may take an initiative to the Governing Board for the amendment of

1.
these Statutes.

The initiatives referred to in paragraph 1 as approved by the Governing Board shall be submitted as draft

2.
amendments to the Commission which shall adopt them, as appropriate.

However, any amendment affecting the essential elements of these Statutes and in particular amendments to Articles

3.
2, 3, 5, 6, 12, 13, 14, 15, 23, 26 and 27 shall be adopted in accordance with Article 172 of the Treaty.

Article 27

Winding up

At the end of the period provided for in Article 1 of this Regulation, or following an amendment pursuant to

1.
Article 11(2) of this Regulation, the FCH Joint Undertaking shall be wound up.

The winding-up procedure shall be automatically triggered if one of

2.
the founding members terminates its
membership, unless the request for termination is accompanied by a proposal for the transfer of the membership to
a legal entity that can be accepted by the remaining founding member.

For the purpose of conducting the proceedings in winding up the FCH Joint Undertaking, the Governing Board shall

3.
appoint one or more liquidators, who shall comply with the decisions of the Governing Board.

4. When the FCH 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.

5. When any physical support item has been dealt with as provided in paragraph 4, any further assets shall be used to
cover the liabilities of the FCH Joint Undertaking and the expenditures 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
FCH Joint Undertaking. Any surplus distributed to the Community shall be returned to the Commission budget.

Remaining assets shall be distributed to the members existing at the time of the winding up in proportion to their

6.
actual contribution to the FCH 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 FCH Joint Undertaking, with a duration longer than the duration of the FCH Joint
Undertaking.