Commission staff working document - Accompanying document to the  Proposal for a Council regulation on the Community legal framework for a European Research Infrastructure (ERI) - Impact assessment  {COM(2008) 467 final} {SEC(2008) 2279}
Date: 2008-07-15
Institutions: European Commission
Subjects: EU research policy, drafting of EU law, industrial infrastructure, research and development

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COMMISSION OF THE EUROPEAN COMMUNITIES 

Brussels, 25.7.2008 
SEC(2008) 2278 

COMMISSION STAFF WORKING DOCUMENT 

Accompanying document to the 

Proposal for a  

COUNCIL REGULATION  

on the Community legal framework for a European Research Infrastructure (ERI) 

IMPACT ASSESSMENT  

{COM(2008) 467 final} 
{SEC(2008) 2279} 

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TABLE OF CONTENTS 

Introduction and policy background .........................................................................................4 

Introduction...............................................................................................................................4 

Policy background ....................................................................................................................5 

Procedural issues, expert groups and consultation of interested parties ...................................7 

The Impact Assessment Board..................................................................................................7 

Consultation of experts .............................................................................................................7 

Consultation of stakeholders.....................................................................................................8 

Sounding Board and Inter-Services Group .............................................................................10 

Problem definition ..................................................................................................................10 

Context....................................................................................................................................10 

Critical role of research infrastructures for R&D in Europe...................................................11 

New challenges in the field of research infrastructures in Europe..........................................11 

Nature of the issue and problem that require action ...............................................................12 

Which groups or regions will be affected? .............................................................................13 

Treaty base and subsidiarity principle ....................................................................................13 

Objectives ...............................................................................................................................14 

Policy objective.......................................................................................................................14 

Consistency with horizontal objectives of the European Union .............................................15 

Policy options..........................................................................................................................15 

Option 1: No specific action at European level ......................................................................16 

Option 2: Coordination action at EU level for the development of best practices..................18 

Option 3: Development of Joint Undertakings .......................................................................19 

Option 4: Development of a dedicated legal framework at Community level........................20 

Analysis of impacts of the policy options...............................................................................23 

Economic, social and environmental impacts of research infrastructures ..............................24 

Main strengths, weaknesses and impacts of the different policy options ...............................26 

Overall conclusions and comparative assessment of the different policy options..................35 

Monitoring and evaluation ......................................................................................................38 

Continuous monitoring ...........................................................................................................38 

Evaluation ...............................................................................................................................38 

1. 

1.1. 

1.2. 

2. 

2.1. 

2.2. 

2.3. 

2.4. 

3. 

3.1. 

3.2. 

3.3. 

3.4. 

3.5. 

3.6. 

4. 

4.1. 

4.2. 

5. 

5.1. 

5.2. 

5.3. 

5.4. 

6. 

6.1. 

6.2. 

6.3. 

7. 

7.1. 

7.2. 

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Annexes: 

1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

Glossary 

List of ESFRI projects: future potential ERIs 

List of existing intergovernmental research organisations 

The ESFRI roadmap for Research Infrastructures 

Report of the Workshop on Legal forms of European research infrastructures (March 2006) 

Summary of the Workshop on the most appropriate legal instruments for ERIs (Dec 2006) 

Report of the Feasibility study on the creation of a legal instrument for ERIs (June 2007) 

Report of the ERA Expert Group: Developing World-Class Research Infrastructures for the 
European Research Area (February 2007) 

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1. 

INTRODUCTION AND POLICY BACKGROUND 

1.1. 

Introduction 

This  Impact  Assessment  accompanies  the  proposal  for  a  "REGULATION  on  the  Community  legal 
framework  for  a  European  Research  Infrastructure  (ERI)",  which  is  included  in  the  Commission 
Legislative  and  Work  Programme  20081  as  one  of  the  priority  initiatives2.  Indeed,  as  a  result  of  the 
institutional  and  public  debate  following  the  2007  Green  Paper  The  European  Research  Area:  New 
Perspectives3,  a  number  of  key  areas  have  been  identified  where  effective  action  in  partnerships 
between  Member  States  would  have  the  potential  to  deliver  significant  gains  for  Europe's  research 
system  and  help  to  create  a  "fifth  freedom"  in  Europe  -  the  free  movement  of  knowledge.  In  this 
document "Developing world class research infrastructures" is put forward as one of the pillars of an 
ambitious ERA vision.  

The "Regulation on a Dedicated Legal Framework for new European Research Infrastructures" is one 
of five policy initiatives planned by the Commission in 2008 as a follow-up to the Green Paper. This 
EC  Regulation  aims  to  facilitate  the  formation  of  European  consortia  for  the  construction  and 
operation  of  research  facilities  of  pan-European  interest.  Complementing  national  or  inter-
governmental  schemes,  this  Regulation  would  provide  an  easy-to-use  legal  framework  with  high 
commonalities on key issues, while leaving enough flexibility to individual consortia to develop rules 
for specific infrastructures.  

This initiative is responding to an explicit request from the Member States for the Commission to act 
in  this  domain  following  the  publication,  in  October  2006,  of  the  ESFRI4,  roadmap  5  identifying  35 
major  research  infrastructure  projects  to  be  developed  in  the  next  10  to  20  years.  These  European 
facilities would have a direct impact on the advancement of fundamental and applied knowledge. By 
providing  efficient  access  to  world-class  scientific  knowledge  for  large  communities  of  researchers 
and users they would also influence Europe's wider competitiveness and understanding of society and 
the environment. This will also significantly increase the attractiveness of the European Research Area 
for researchers. 

This  report  commits  only  the  Commission's  services  involved  in  its  preparation  and  the  text  is 
prepared as a basis for comment and does not prejudge the final form of any decision to be taken by 
the Commission. 

1 
2 
3 

4 

5 

-  The  European  Research  Area:  New  Perspectives 

Commission Legislative and Work Programme 2008 COM(2007) 640 final, Brussels, 23.10.2007 
Ref: 2008/RTD/034 
COM(2007)  161,  GREEN  PAPER 
http://ec.europa.eu/research/era/progress-on-debate_en.html 
ESFRI  was  set  up  in  2002.  It  brings  together  representatives  from  the  EU  Member  States  and 
Associated  States  and  a  representative  of  the  European  Commission.  Its  main  scope  is  to  support  a 
coherent  and  strategy-led  approach  to  policy-making  on  research  infrastructures  in  Europe  and  to 
facilitate  multilateral  initiatives  leading  to  the  better  use  and  development  of  research  infrastructures. 
Information on ESFRI and its activities is available at http://cordis.europa.eu/esfri/home.html 
The ESFRI roadmap for Research Infrastructures (http://cordis.europa.eu/esfri/roadmap.htm) deals with 
facilities,  resources  or  services  of  a  unique  nature  that  have  been  identified  by  European  research 
communities to conduct top-level research activities. See annex 2 and 4. 

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1.2. 

Policy background  

Since  the  Communication  of  the  European  Commission  Towards  a  European  Research  Area  of 
January 2000 the idea of a common a European Research Area (ERA) has been the guiding principle 
for  all  Community  R&D  measures  and  a  central  pillar  in  realising  the  research  goals  of  the  Lisbon 
Strategy  for  growth,  jobs  and  a  dynamic  and  knowledge-based  European  economy.  In  this  context, 
developing  a  European  policy  for  research  infrastructures  has  been  the  subject  of  high  level 
discussions and reflections over the last few years.  

Research infrastructures play an increasing role in the advancement of knowledge and technology and 
their  exploitation.  For  example,  radiation  sources,  data  banks  in  genomics  and  data  banks  in  social 
science,  observatories  for  environmental  sciences,  systems  of  imaging  or  clean  rooms  for  the  study 
and  development  of  new  materials  or  nano-electronics,  are  at  the  core  of  research  and  innovation 
processes. By offering unique research services to users from different countries, by attracting young 
people  to  science  and  through  networking  of  facilities,  research  infrastructures  help  structuring  the 
scientific  community  and  play  therefore  a  key  role  in  the  construction  of  an  efficient  research  and 
innovation  environment.  Because  of  their  ability  to  assemble  a  ‘critical  mass’  of  people  and 
investment,  they  contribute  to  national,  regional  and  European  economic  development.  They  are 
therefore at the core of the knowledge triangle of research, education and innovation.  

In the ERA Green Paper published in 2007 world class research infrastructures are put forward as one 
of the pillars of an ambitious ERA vision. However, as the frontiers of research evolve and become 
more  advanced  and  as  our  technologies  progress,  research  infrastructures  are  becoming  increasingly 
complex and more expensive, often placing them beyond the reach of a single research group, region, 
nation or even continent.  

Europe has taken a major step forward in the development of a more coordinated approach for policy-
making in the field of research infrastructures with the establishment of ESFRI, the European Strategy 
Forum  for  Research  Infrastructures.  The  Informal  Competitiveness  Council  of  1-3  July  2004  in 
Maastricht (NL) welcomed the Commission's proposal to develop a strategic roadmap for Europe in 
the field of Research Infrastructures for the next 10 to 20 years and at the Competitiveness Council of 
25-26  November  2004,  the  Research  Ministers  asked  ESFRI  to  establish  this  roadmap  in  close 
collaboration with the European Commission.  

In October 2006, ESFRI released the first ever European Roadmap for Research Infrastructures. The 
ESFRI  roadmap  contains  35  key  major  projects  of  pan-European  interest.  These  cover  a  variety  of 
fields ranging from Sciences  & Humanities, to Environmental Sciences, from Energy to Biomedical 
and  Life  Sciences,  or  Physics.  Research  infrastructures  are  large-scale  facilities,  major  pieces  of 
research  equipment,  set  of  instruments,  databases  and  networks  that  aid  scientists  in  their  work. 
Examples  of  such  facilities  in  the  Roadmap  include  large-scale  laser  systems,  deep  sea  floor 
observatories,  bio-banks,  the  European  Extremely  Large  Telescope,  a  network  of  clinical  research 
centres and an upgrade of the European Social Survey.  

The sheer size of these projects (generally several hundreds of millions of Euros for construction and 
several tens of millions of Euros for operation) requires a joint effort by European Member States.  

In  the  context  of  the  European  strategy  to  improve  the  framework  conditions  for  research  and 
innovation  a  modernised  Community  framework  for  State  aid  for  research  and  innovation6  and 
guidance for a more effective use of tax incentives for R&D7 were adopted in November 2006.  
At the Competitiveness Council of 21-22 May 20078, the Research Ministers noted that Europe's main 
global  partners  are  strongly  investing  in  modern  large-scale  research  infrastructure  and  stressed  the 
importance of starting the implementation of projects such as those contained in the ESFRI roadmap. 

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OJ C2323, 30.12.2006 
COM (2006) 728 of 22.11.2006 
Presidency conclusions of the Competitiveness Council of 30 May 2007  

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Member  States  were  invited  to  develop  or  strengthen  their  national  roadmaps  and  strategies  on 
research infrastructures and to develop long-term plans for the investments. In addition, the Council 
recommended them to coordinate their future activities, taking account of the orientation proposed by 
ESFRI, thereby generating economies of scale and enabling a more efficient development. 

The  European  Council,  in  its  meeting  of  December  14,  20079,  reiterated  its  invitation  to  Member 
States  and  urged  them  to  participate  more  actively  to  the  implementation  of  European  Research 
Infrastructures, in the context of the Lisbon objectives. The European Council, in its meeting of March 
13-14, 200810, recommended also the increase of scientific e-infrastructures and the strengthening of 
research  infrastructures  of  pan-European  interest.  More  specifically  in  the  field  of  energy,  the 
Council  in  its  meeting  of  February  28,  200811  highlighted  the  need  to  improve  and  enlarge  the 
Community's  world  class  knowledge  base  in  particular  by  asking  ESFRI  to  identify  the  need  for 
European  Research  Infrastructures,  in  line  with  the  European  Strategic  Energy  Technology  Plan  put 
forward by the Commission.  

However, a major difficulty for setting up new European research infrastructures, apart from scarcity 
of resources and the complexity of technical and organisational issues is the lack of an adequate legal 
framework  allowing  the  creation  of  appropriate  partnership  with  partners  from  different  countries. 
Recent  work  carried  out  under  the  auspices  of  the  ESFRI  has  recognised  the  limitations  of  existing 
legal instruments and identified a need to develop a new dedicated Community legal framework for 
setting-up European research infrastructures.  

It is in that context that the Commission has included in its 2008 Legislative and Work Programme, as 
a Priority Initiative, a proposal to develop a "REGULATION on the Community legal framework for a 
European Research Infrastructure (ERI)".  

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10 
11 

Presidency conclusions of the European Council of 14 December 2007 
Presidency conclusions of the European Council of 13-14 March 
Energy Council conclusions referring to the SET plan of 28 February 2008 

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2. 

PROCEDURAL ISSUES, EXPERT GROUPS AND CONSULTATION OF INTERESTED PARTIES 

This proposal relates to Commission's work plan item Ref: 2008/RTD/034. The main analysis for the 
impact  assessment  was  conducted  between  March  2006  and  April  2008.  Given  the  broad  range  of 
potential  impacts,  an  inter-service  group  was  established  and  held  regular  meetings  between 
November 2007 and May 2008. This group was chaired by DG RTD and consisted of representatives 
from the following DGs and Services: DG INFSO, DG ADMIN, DG BUDG, DG ENV, DG MARKT, 
DG REGIO, DG TAXUD, DG TREN, the Joint Research Centre (JRC), Secretariat General and the 
Legal service. 

A  wide-ranging  consultation  of  interested  parties  has  been  carried  out  to  prepare  this  initiative.  The 
impact assessment has drawn information coming from a variety of sources:  

i) 

ii) 

iii) 

Analysis conducted by experts;  

Consultation of stakeholders and  

Contributions  from  an  inter-service  group  and  from  an  independent  "sounding  board" 
specifically set up to follow this initiative.  

2.1. 

The Impact Assessment Board 

A draft of this Impact Assessment was submitted to the Impact Assessment Board on 15 April 2008. 
In its favourable opinion dated 15 May 2008, the Board advised the Directorate-General for Research 
to elaborate more on the option Number 4 (see sections 5 and 6). DG Research therefore revised this 
report in line with Board's comments. 

2.2. 

Consultation of experts  

i) 

Opinion of the Member States (through ESFRI) 

ESFRI  brings  together  high  level  national  policy  officials,  and  has  played  an  important  role  in 
promoting  the  case  for  developing  a  new  legal  framework  for  European  research  infrastructures.  To 
tackle  this  issue  and  move  it  forward,  ESFRI  organised,  in  collaboration  with  DG  Research,  two 
workshops12 with key stakeholders in 2006.  

The first workshop, held on 23 March 2006, brought together ESFRI representatives, officials of the 
European  Commission,  directors  of  European  research  facilities  and  legal  experts  with  in-depth 
knowledge of the subject. The main aims were to take stock of the experience with legal instruments 
used  in  establishing  European  research  infrastructures,  to  identify  examples  of  good  practices,  to 
elaborate  upon  the  advantages  and  disadvantages  of  the  existing  legal  forms  and  to  define  a  set  of 
criteria  for  the  selection  of  the  most  suitable  ones  for  new  research  infrastructures.  A  second 
workshop, on 14 December 2006, focused on the analysis of the legal forms that exist at Community 
level.  

The  two  workshops  showed  the  limitations  of  the  existing  legal  forms  at  national,  Community  or 
international  level  for  European  research  infrastructures  and  identified  the  need  to  carry  out  a 
feasibility study for a new European legal instrument.  

12 

The reports of the workshops are available on the site http://cordis.europa.eu/esfri/policy.htm. They are 
also available in annex 5 and 6 of this report in pdf format. 

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ii) 

Opinion of an expert-group on the feasibility of a European legal instrument  

A  feasibility  study  on  the  creation  of  a  European  legal  instrument  for  European  research 
infrastructures was carried out during the first part of 2007. Legal specialists13 were in charge of this 
study. The group concluded that a solution could be an EC Regulation based on Article 171 of the EC 
Treaty,  providing  a  general  common  legal  frame  for  research  infrastructures  of  European  interest. 
These  conclusions  were  presented  at  the  4th  European  Conference  on  Research  Infrastructures,  in 
Hamburg, in June 2007 (see below). In their view, this regulation should only provide a framework, 
leaving sufficient amount of flexibility to the individual consortia to set up the adequate rules for the 
specific infrastructure. 

iii) 

Opinions of the ERA expert group 

As a means to further stimulate the debate on ERA issues, an expert group on research infrastructures 
was established14. The interim conclusions of this group were presented at the high-level Conference 
on 'The Future of Science and Technology in Europe' in Lisbon, Portugal, 8 to 10 October 200715. In 
its  final  report16,  the  group  highlights  that  achieving  the  next  generation  of  European  infrastructures 
requires new legal and governance structures that can be more readily available. Experts also indicate 
that purely national legal bases as well as international agreements have proven either inadequate or 
too  complex  to  comply  with  the  needs  of  the  research  community.  The  group  recommended 
developing an EU legal framework for Research Infrastructures based on Art. 171 EC Treaty. 

2.3. 

Consultation of stakeholders  

iv) 

Conclusions of the 2007 Conference on Research Infrastructures 

The  European  Conference  on  Research  Infrastructures,  ECRI  2007,  organised  under  the  German 
Presidency, was an opportunity for more than 400 research stakeholders to debate the key challenges 
in  this  area.  Participants  included  representatives  from  parliaments,  ministries,  funding  agencies, 
industry,  the  European  Commission  as  well  as  science  administrators  and  decision  makers  of  large 
infrastructure  facilities.  The  conclusions  of  the  conference  underlined  the  importance  of  research 
infrastructures  for  capacity  building,  training  of  researchers  and  generation  and  transfer  of  new 
knowledge, and the active role of the European Commission in the field of research infrastructures. A 
special  session  was  dedicated  to  legal  aspects,  where  ideas  for  a  new  legal  instrument  for  the 
development  of  European  facilities  were  presented  and  discussed.  For  the  implementation  of  the  35 
projects  on  the  ESFRI  Roadmap,  the  conference  concluded  that  an  important  factor  would  be  the 
creation of a dedicated legal structure at European level.17 

v) 

ERA stakeholders' consultation (2007) 

Following  the  Green  Paper  on  "The  European  Research  Area:  New  Perspectives",  the  European 
Commission  launched  a  broad  institutional  and  public  debate  on  what  needs  to  be  done  to  give 
renewed impetus to the achievement of ERA. The development of research infrastructures was one of 

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15 

16 

17 

Members  of  the  expert  group  were:  FISCHER-DIESKAU  Christian  (EC  Honorary  Director),  TUTT  Ann 
(CCLRC),  JAHREISS  Hans  (Head  of  Administration  ESO),  GARCIA-GALLARDO  Ramon  (SJ  Berwin 
LLP), MARIEN-DUSAK Ingrid (EC – DG INFSO), BAS-SANCHEZ Mila (EC – DG RTD) 
The Expert Group was composed of: KROO Norbert (Chair), LAETHEM Bart (Rapporteur), CELIS Julio, 
ELIAS Peter, JAHREISS Hans, LAAKSONEN Leif, LEON Gonzalo, READ Malcom. 
See 
http://ec.europa.eu/research/conferences/2007/fst/pdf/discussionpaper_en.pdf 
Developing  World-Class  Research  Infrastructures  for  the  European  Research  Area,  EUR  23320  EN 
2008. Available also in annex 8 of this report. 
ECRI 2007Conference, Hamburg, 5-6 June 2007: 
https://www.ecri2007.de/documentation/conclusions  

Interim  Policy  Options  Paper  of 

the  ERA  Expert  Group 

Infrastructures", 

"Research 

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the  key  issues.  Stakeholders  were  invited  to  contribute  to  the  debate  by  responding  via  an  on-line 
questionnaire, though other forms of response were also encouraged18.  

A total of 685 responses to the online questionnaire were recorded, with 31% (211 responses) replying 
on behalf of an organisation and 69% (474 responses) in an individual capacity. While the majority of 
survey  respondents  were  resident  in  Europe  (the  largest  groups  being  resident  in  France  (96),  Italy 
(93), the UK (80) and Germany (70)), replies were received from third countries, including the USA 
(14), Australia (3), Canada (2) and China (1). 

Most  respondents  to  the  online  questionnaire  (82%)  agreed  that  a  common  approach  was  needed  to 
develop  the  European  research  infrastructures  identified  by  ESFRI  (6%  disagree  and  12%  had  no 
opinion). On those respondent agreeing 81% also agreed that leadership for such a common approach 
should  be  taken  by  the  European  Union.  In  response  to  the  question  ‘What  action  is  required  at  the 
European  level  to  facilitate  the  creation  and  operation  of  these  new  infrastructures  identified  by 
ESFRI?’, there was a clear measure of agreement (58%) that a new European legal framework should 
be developed to support the creation and operation of new forms of research infrastructures, and that 
guidelines should also be established to facilitate  such activity (72%). The respondents supporting a 
new  legal  framework  stressed  the  need  for  flexibility  given  the  diverse  nature  of  research 
infrastructures.  

As  far  as  the  views  of  the  Europe's  inter-governmental  research  organisations  (EIROforum)  are 
concerned,  they  believe  that  inter-governmental  agreements  still  have  a  useful  role  to  play.  They 
indicate that establishing new agreements is often perceived to be cumbersome, but they claim that the 
long-term  operational  stability  that  is  embodied  in  such  agreements  far  outweigh  the  short-term 
additional efforts needed to initiate them. 

European  Research  Performing  Organizations  (RPOs)19  expressed  the  view  that  "a  European 
framework to facilitate the emergence and operation of new forms of research infrastructures of pan-
European interest was needed " and that "tax (VAT) and mobility of personnel problems have to be 
solved in flexible schemes that keep the acquisitions of existing pan-European institutions (e.g. ESRF, 
CERN,  ESA,  ESO)  while  avoiding  the  high-level  agreements  needed  to  implement  them 
(intergovernmental treaties etc)". 

vi) 

Meeting with currently involved stakeholders (2008) 

A  Stakeholder  Meeting  was  organised  on  3  March  2008  to  explain  to  potential  stakeholders  the 
content a regulation based on article 171 EC Treaty, to ensure that it responds well to the expressed 
needs. Participants included representatives of the projects in the ESFRI roadmap, representatives of 
European research facilities and legal experts with in-depth knowledge of the subject.  

A vast majority of experts agreed on the usefulness of a new legal form at Community level and on the 
broad  orientation of  the project  of  the Commission20.  They  expressed  the  wish for  the  legal form  to 
bring some advantages e.g. provisions in the new legal framework would be necessary in the fields of 
taxation, public procurement rules and some staff rule. Experts from new Member States expressed the 
view that a new legal frame at Community level would be most useful for new Member states, which 
have no experience and may have no appropriate national legal form available. Although many staff 
and  resources  issues  would  not  be  solved  by  the  ERI  there  was  broad  agreement  that  the  new  legal 

18 

19 

20 

The on-line public consultation lasted from 1st May  2007  until 31st August 2007. The consultation has 
given rise to over 800 written submissions, opinions and recommendations. Their analysis can be found 
on http://ec.europa.eu/research/era/progress-on-debate/stakeholder-consultation_en.html. 
Free  form  contribution  received  from  the  "Centre  National  de  la  Recherche  Scientifique  (CNRS)"  of 
France,  the  "Consejo  Superior  de  Investigaciones  Cientificas  (CSIC)"  of  Spain  and  the  "Max  Planck 
Society (MPS)" of Germany. 
See summary conclusions under http://cordis.europa.eu/esfri/policy.htm  

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form  would  help  to  attract  international  staff  and  associated  resources  where  they  are  going  to  be 
needed. Other staff related issues such as pay scales and pensions were considered too difficult to be 
dealt with in the Regulation.  

There was a broad agreement on the projected legal base for the ERI (Art. 171 of the EC treaty) and 
on  the  need  for  an  empowerment  of  the  Council  to  the  Commission  to  simply  and  speed  up  the 
process. 

2.4. 

Sounding Board and Inter-Services Group  

vii) 

Sounding board 

A  'sounding  board'  was  also  set  up,  at  the  beginning  of  2008,  to  support  the  Commission  in  its 
activities in the context of the work of the inter-service group21. This group, composed of five experts 
with  in-depth  experience  in  the  field  of  research  infrastructures,  advised  the  Commission  on  the 
general  objectives  of  the  intended  framework  regulation  and  its  content,  on  the  preparation  of  a 
stakeholder workshop and on the Impact Assessment.  

The sounding board was pleased with the work carried out for the impact assessment. It showed strong 
support  to  the  option  to  develop  a  new  Community  legal  instrument  for  European  research 
infrastructures. In their view, such a legal instrument, complementing other existing legal forms, could 
facilitate and speed up the decision making process for new infrastructures. In order to be useful the 
new  legal  instrument  should  allow  arrangements  that  are  common  in  international  organisations  for 
procurements, exemptions of taxation, derogations from national laws and limitation of liability. The 
monitoring  by  the  Commission  should  not  generate  any  extra  administrative  burden  for  the 
infrastructure's management. 

viii) 

Conclusions of the inter-service group  

The  inter-service  group  held  six  official  meetings  between  November  2007  and  May  2008.  Several 
additional  bi-lateral  meetings  were  also  organised  between  DG  RTD  and  the  other  Directorates 
General and services involved to progress with the work. The Interservice Group concluded that, while 
the existing legal forms under which trans-national research infrastructures can be set up remain valid 
and  useful,  a  new  legal  framework  as  suggested  in  the  forecasted  initiative  would  bring  advantages 
and Community Added Value. 

3. 

PROBLEM DEFINITION 

3.1. 

Context 

As mentioned in the ERA Green Paper in 2007, "a sense of urgency in revisiting ERA stems from the 
fact that globalisation of research and technology is accelerating and new scientific and technological 
powers  –  China,  India  and  other  emerging  economies  –  are  attracting  considerable  and  increasing 
amounts of R&D investments. These developments bring new opportunities for Europe and the world. 
At  the  same  time,  they  raise  the  question  of  Europe’s  ability  to  sustain  a  competitive  edge  in 
knowledge and innovation, which is at the core of the renewed Lisbon Strategy for Growth and Jobs. 
Addressing  this  question  will  be  a  major  issue  for  the  next  three-year  cycle  of  the  Strategy,  to  be 
initiated  in  2008".  In  addition  our  society  faces  many  challenges,  global  or  specific,  in  many  areas. 
These  include  climate  change,  energy  production,  water  supplies,  the  need  for  a  sustainable 
environment, improvement in the quality of life, the threat of terrorism. 

21 

The  Sounding  Board  was  composed  of:  VIERKORN-RUDOLPH  Beatrix  (BMBF,  Chair),  BAINES  Linda 
(CCLRC),  FIONI  Gabriele  (CEA),  MARN  Jure  (Univ.  Maribor),  GARCIA  GALLARDO  Ramon 
(independent  expert),  RODRIGUEZ  Manuel  (representative  of  ESRF),  METZGER  Maximilian 
(representative of CERN). 

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The Commission's recent Communication on the renewed Lisbon strategy22 stresses that "Europe must 
also  pool  its  resources  for  a  new  generation  of  large-scale  facilities  for  future  laboratories  and 
instruments  which  are  indispensable  for  staying  at  the  forefront  of  frontier  research  over  the  next 
decades".  

3.2. 

Critical role of research infrastructures for R&D in Europe 

The  existence  of  and  access  to  leading  research  infrastructures  is  a  major  determinant  in  Europe’s 
ability to sustain a competitive edge in knowledge creation and innovation. As identified in particular 
by ESFRI, high quality research infrastructures are of paramount importance because of the following 
factors: 

•  Research infrastructures are essential for ensuring the scientific advances that can help Europe to 
find  solutions  to  many  of  the  above-mentioned  challenges  (global  warming,  energy  production, 
water supplies, a sustainable environment, health, etc).  

•  Research infrastructures provide essential tools to carry out cutting-edge research and a large part 
of excellent research is performed in and around such facilities. They serve as magnets for talented 
researchers  and  thus  encourage  the  important  interaction  of  researchers  coming  from  different 
countries or disciplines. 

•  Research infrastructures play a key role in building the interface between science and industry. The 
landscape of Europe shows that, where research infrastructures have their site, often “technology 
clusters”  or  so-called  technology  parks  can  be  found.  The  construction  and  operation  of  such 
facilities also create important supply and demand effects for new and high-tech equipment, being 
then the seed for spin-off products and/or start up companies. 

•  Research Infrastructures serve large scientific communities and many thousands of researchers and 
students  from  universities,  research  institutes  or  industry,  from  Europe  and  outside  Europe,  use 
them each year. Research Infrastructures should therefore contribute substantially to attracting the 
600,000 or more young scientists that Europe needs to reach 3% of GDP investment in research. 

•  Research  infrastructures  stimulate  the  interest  of  young  people  to  embrace  scientific  careers  and 

train highly skilled people.  

3.3. 

New challenges in the field of research infrastructures in Europe  

However, there are a number of important trends which pose challenges for Europe when it comes to 
creating the new research infrastructures it needs in the coming years:  

•  As the frontiers of research evolve and become more advanced and as our technologies progress, 
the  demands  for  new,  upgraded  and  more  elaborate  research  infrastructures  are  becoming 
increasingly  complex  and  expensive.  Scientific  fields  such  as  life  sciences  are  also  undergoing  a 
profound  transformation,  fuelled  by  advances  in  high-throughput  analytical  techniques  such  as 
genomics and proteomics. In fields such as astronomy (for example research into the nature of dark 
energy  or  the  evolution  of  galaxies)  there  is  a  need  for  ever  more  complicated  and  expensive 
research instruments and research services.  

•  At the same time, there is a trend towards the setting-up of more and more multidisciplinary and/or 
distributed  facilities,  to  look  at  complex  and  interacting  systems  (e.g.  environment,  energy  or 
human  behaviour),  a  development  which  is  associated  with  the  increasing  capabilities  of 
communication, data treatment and storage. 

22 

Strategic  report  on  the  renewed  Lisbon  strategy  for  growth  and  jobs,  Communication  from  the 
Commission to the European Council, COM(2007) 803 final, 11.12.07 

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3.4. 

Nature of the issue and problem that require action 

These new trends mean that the costs of many envisaged new facilities cannot be met by individual 
Member States, and that they can only be constructed if several partners from different countries pool 
their resources. In other words, it is now necessary to create a series of key research infrastructures on 
a European scale, involving partnerships between interested Member States. This is the rationale for 
ESFRI's European Roadmap for Research Infrastructures (see annex 4). 

However, the close international cooperation required to do this raises a number of serious problems. 
Organisations from different countries often find it difficult to cooperate, enter into partnerships and 
pool resources. Indeed, the setting-up of international consortia typically involves long and complex 
negotiations  on  e.g.  governance,  share  taken  over  by  each  partner,  "return"  of  investment,  tax, 
procurement or liability issues. 

For a given infrastructure, partners from different countries must find and develop an appropriate legal 
base in order to resolve these issues. However, while there are currently a number of different legal 
forms available under national, Community or international laws, recent work has shown that in most 
cases they are unsuitable for meeting the needs of new European research infrastructures. In particular 
the creation of international organisations requires long procedures due to the high number of formal 
steps.  Moreover  the  staffs  in  such  entities  enjoy  salaries  and  privileges  which  are  not  considered 
justified in most cases. Community legal forms such as EEIG, EGTC or ECS (see section 5.1.ii) are 
not fully appropriate, either because their objectives are out of the scope of Research Infrastructures or 
because they exhibit specific limitations (impossibility of participation of non EU countries, unlimited 
liability of members or upper limit for the number of employees). Although national forms were used 
in a few cases, they remain specific to each country and this feature remains a serious obstacle to the 
participation of other countries, not to mention that many countries do not have any adapted legal form 
in  their  national  law.  In  addition,  for  all  legal  forms  mentioned  above,  the  exemptions  on  taxation 
which  are  generally  required  by  members  require  specific  and  cumbersome  negotiations  with  the 
national and local authorities23.  

These  factors  were  clearly  identified  by  potential  stakeholders  of  the 35  major  European 
infrastructures  on  the  ESFRI  Roadmap.  The  stakeholders also urged  ESFRI  and  the  EC to find  a 
solution avoiding lengthy and complex legal negotiations, which will inevitably delay the setting up of 
these important facilities. What is required, if Europe is to be able to launch rapidly and efficiently the 
new infrastructures it needs, is to identify a legal framework adapted to the specific problems of cross-
border cooperation and financing24. The stakes are high and stakeholders agree that there is no time to 
lose  in  finding  a  solution25.  If  this  is  not  possible  this  means  that  the  scientific  and  technological 
advances  resulting  from  the  operation  of  these  infrastructures  will  be  significantly  delayed,  and  that 
Europe will thus progress more slowly towards its Lisbon and ERA objectives. In particular, progress 
towards the knowledge economy will be slower, as will the potential benefits to citizens and society 

23 

24 

25 

For  example,  in  the  case  of  FAIR  and  X-FEL,  the  discussion  between  the  potential  partners  started  in 
2004  and  are  not  yet  finalised.  In  addition  to  the  negotiations  on  the  amounts  and  nature  of 
contributions, which are the key issue, it is clear that taxation issues had to be clarified before the partner 
states  could  put  forward  any contributions. For  lack  of  better  alternatives,  it  was  decided that  the  new 
facilities should be built and run by a German limited liability company (GmbH). Representatives from the 
partner countries spent a lot of time to understand how they could work within such an organisation and 
make their influence weigh. This part of the negotiations could have been significantly speeded up if all 
partners had been able to start on an equal footing with a Community legal form that would have helped 
to solve taxation issue. 
In  a  recent  article  in  NATURE  (Vol  447/24  May  2007)  we  can  read  "There  is  no  perfect  model  for 
international  research  infrastructure,  but  intergovernmental  organizations  have  historically  been 
successful  because  they  are  legal  entities  with  customized  governance  that  allows  independent 
operation  but  continuous  external  performance  evaluation.  However,  such  organizations  take  years  to 
establish.  Simultaneously  setting  up  multiple  entities  with  differing  combinations  of  member  states  for 
various  ESFRI  projects  seems  to  us  impossibly  difficult.  Achieving  the  next  generation  of  European 
infrastructures  will  therefore  require  new  legal  and  governance  structures  that  can  be  more  readily 
adapted to support successful ESFRI projects". 
Lisbon Presidency conference, October 2007 

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from the scientific advances these infrastructures will produce in relation to the environment, energy, 
health and so on. 

3.5. 

Which groups or regions will be affected? 

This new initiative will affect a wide range of players. Firstly, researchers will be affected by the more 
rapid creation of infrastructures in a number of disciplines. Not only will this affect the many scientists 
who will work at these facilities and be able to conduct cutting-edge research, but it will also have an 
impact on thousands of scientists from universities, research institutes and industry, both from Europe 
and outside Europe, who will be able to access these new facilities. 

As  mentioned  above,  the  rapid  construction  and  operation  of  such  facilities  will  also  have  further 
impacts on industry, in terms of accelerating important supply and demand effects for new and high-
tech  equipment,  sometimes  leading  to  spin-off  products  or  start  up  companies.  Building  these 
infrastructures  more  quickly  can  also  accelerate  the  benefits  of  an  enhanced  interface  between  the 
scientific  and  industrial  research  communities,  for  example  through  stimulating  the  formation  of 
“technology clusters” or technology parks.  

Within the European Union (EU), the new Member States are also in a position to benefit from this 
new initiative. A survey on existing research infrastructures26 carried out in 2006 showed that, at the 
beginning  of  the  21st  century,  such  infrastructures  were  predominantly  built  in  EU-15  rather  than  in 
EU-12  and  that  the  gap  between  the  EU-12  and  EU-15  Member  States  in  regard  of  research 
infrastructures was continuing to increase. Thus a legal form at Community level would be especially 
useful in new Member States and in Member States where no large research infrastructures exist.  

3.6. 

Treaty base and subsidiarity principle 

The right for the Community to act in this field is set out in several articles of the Treaty which make 
provisions for research coordination and cooperation.  

Article 165 stipulates that "the Community and the Member States shall coordinate their research and 
technological development activities so as to ensure that national policies and Community policy are 
mutually consistent". It also allows the Commission, in close cooperation with the Member States, to 
"take any useful initiative" to promote such coordination.  

In  addition,  Article  171  stipulates  that  "the  Community  may  set  up  joint  undertakings  or  any  other 
structure necessary for the efficient execution of Community research, technological development and 
demonstration programmes"27. 

In order for Community action to be justified, it is also necessary for the subsidiarity principle to be 
respected. This involves assessing two aspects. Firstly, it is important to be sure that the objectives of 
the  proposed  action  could  not  be  achieved  sufficiently  by  Member  States  in  the  framework  of  their 
national  constitutional  system  (necessity  test).  Three  options  are  proposed  to  tackle  the  identified 
problem:  (1)  Coordination  action  at  European  level  for  the  development  of  best  practices;  (2) 
Development  of  Joint  Undertakings  and  (3)  Development  of  a  dedicated  legal  framework  at 
Community level. The Community is best placed to implement these options, on the basis of Article 
165 for the first one, and through Article 171 for the two others. 

The second aspect to consider is whether and how the objectives could be better achieved by action on 
the part of the Community (test of European value-added). The rationale for a European action stems 
from  the  trans-national  nature  of  the  problem  (setting-up  of  legal  frameworks  between  Member 
States). Alternative solutions exist through the setting up of inter-governmental agreements, however – 
as  already  mentioned  -  the  administrative  and  legal  processes  which  typically  have  to  be  followed 
under  such  intergovernmental  schemes  are  sometimes  considered  as  too  lengthy,  difficult  and 
cumbersome. 

26 
27 

Reference to the Survey realised in 2006– http://www.ec.europa.eu/research/infrastructures 
Treaty establishing the European Community; see Official Journal C 325 of 24 December 2002. 

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4. 

OBJECTIVES 

4.1. 

Policy objective 

i) 

General objectives  

The  overall  objective  of  this  proposal  is  to  help  Europe  address  the  various  opportunities  and 
challenges  it  is  confronted  with  through  the  timely  development  of  efficient  European  research 
infrastructures (ERI) which would in turn: 

•  Help strengthen the development of an efficient European Research Area by better integrating and 
leveraging national efforts, avoiding sub-critical facilities, building a European identity and placing 
Europe as a world leader for high-level research services, therefore supporting many of the Lisbon 
objectives;  

•  Help  Europe  to  "pool  its  resources  for  a  new  generation  of  large-scale  facilities  which  are 
indispensable  for  staying  at  the  forefront  of  research  over  the  next  decades"28  ;  providing 
researchers with the research facilities they need, increasing therefore European attractiveness and 
potential for capacity building and reinforcing the image of Europe as a place to conduct leading 
edge and cost-efficient basic research;  

•  Help  to  better  tackle  social  and  environmental  challenges  such  as  climate  change,  energy 
production, water supplies, quality of the environment, quality of life and societal issues, through 
excellent research services provided by such new European Research Infrastructures, including e-
infrastructures; 

•  Contribute to long-term economic competitiveness, through the acceleration of scientific advances 

in Europe favoured by such new European facilities and knowledge-based growth. 

ii) 

Specific objectives  

It should be remembered that providing world class research infrastructures (ERI) will create unique 
opportunities to carry out cutting-edge research; to attract the best researchers from across the world; 
to train highly qualified students and engineers; and to boost technology transfer and innovation29. 

Achieving these objectives can be assisted by the development of a favourable legal environment by 
the efficient use of specific articles of the Treaty, namely articles 165 and 171 (and article 172 for its 
implementation) stimulating in turn an easy-to-use process and the timely launch of a new generation 
of European research infrastructures (ERI).  

It is important: 

•  To  stimulate  the  setting-up  of  any  structure  necessary  for  the  efficient  execution  of  research, 

technological development and demonstration Community programmes; 

•  To simplify the complex process of developing new European research infrastructures, accelerate 

their construction and avoid uncoordinated activities. 

To ensure that national policies and Community policy are mutually consistent: the Commission may 
take any useful initiative to promote such coordination. 

28 

29 

Recommendation  of  the  Strategic  report  on  the  renewed  Lisbon  strategy  for  growth  and  jobs, 
Communication from the Commission to the European Council, COM(2007) 803 final, 11.12.07 
ESFRI roadmap report; ISBN 92-79-02694-1, 2006 

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iii) 

Operational objectives 

The  implementation  of  new  European  research  infrastructures  (such  as  those  identified  by  ESFRI) 
requires Europe wide partnerships and their timely establishment. In addition the development of basic 
research in Europe needs the development of more favourable conditions. The operational objectives 
of this proposal are in this context: 

•  To ease and speed up the process of setting-up and operating new European research infrastructures 

(ERI), in particular through a cost-efficient decision-making procedure; 

•  Based  on  the  ESFRI  roadmap  identifying  35  potential  new  projects,  to  increase  the  number  of 
European  research  infrastructures,  in  shaping  a  legal  instrument  that  might  correspond  better  to 
their needs; 

•  To  help  develop  further  the  European  policy  for  research  Infrastructures,  complementing  the 

advancements already achieved since 2004, in particular through ESFRI.  

4.2. 

Consistency with horizontal objectives of the European Union 

The rapid setting-up of new European research infrastructures – as identified for example by ESFRI - 
would enable an easier and quicker achievement of the horizontal objectives of the European Union: 

Growth  and  Jobs:  The  construction,  operation  and  maintenance  of  such  facilities  create  indeed 
important supply and demand effects. For example, the generation of today's CCD cameras (consumer 
products),  or  the  use  of  specific  software  for  ophthalmological  examinations  have  their  roots  in  the 
technological developments done in the last twenty years in the large optical astronomy observatories;  

"Sustainable Europe": European research infrastructures help to better understand our environment 
or  to  develop  new  Energy  approaches.  As  identified  by  the  Energy  Council  of  28  February  2008, 
research infrastructures help to improve and enlarge the Community's world-class knowledge base of 
researchers  and  research  institutes,  including  by  reducing  barriers  to  mobility,  attracting  world-class 
human capital, improving science education, in the field of renewable energy technologies (SET plan);  

"Knowledge Society": European research infrastructures are key for the efficient access to world-level 
scientific knowledge by large communities of researchers and users. It should be remembered that the 
Internet  was  born  in  CERN  many  years  ago.  Today  millions  of  kilometres  of  fibre  optics  link  the 
different  scientific  centres  of  competences,  research  centres  and  universities,  as  the  backbone  of  an 
efficient, quick and reliable scientific communication and information system. 

Europe as a world partner: The rapid development of European research infrastructures will largely 
impact  the  attractiveness  of  the  European  Research  Area.  Already  Australia,  India,  Russia  and  the 
USA have shown considerable interest in a participation in the development of the ESFRI projects. 

Better  regulation  (and  simplification):  Finally,  through  an  optimisation  of  the  legal  framework  at 
European  level,  the  Council  could  allow  a  quicker  and  efficient  process  for  the  management  of  the 
different files related with the setting-up of new European research facilities using a single legal base 
instead of several national ones.  

5. 

POLICY OPTIONS 

Four policy options have been considered in relation with these objectives. These policy options are 
presented below in an order of increasing importance of the intervention:  

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•  Option  1:  The  "no  specific  action  at  European  level"  option  corresponds  to  the  present  situation, 
where, each consortium, through an ad hoc process, tries to identify among existing legal forms the 
one which could be the most appropriate for their project;  

•  Option  2  corresponds  to  a  "light"  form  of  intervention  from  the  European  Commission,  helping 
those  involved  in  building  European  infrastructures  to  identify  problems  and  needs,  to  exchange 
information about how to tackle these problems and to establish best practices.  

•  Option  3  corresponds  to  the  setting-up  of  Joint  Undertakings  by  the  Community,  according  to 
Article  171  of  the  EC-Treaty,  on  case  by  case  basis,  every  time  that  a  need  for  such  setting-up 
occurs;  

•  Option 4 is a more direct response to the problem at hand. It proposes a Community's legislative 
action to provide a new legal instrument adapted to the need of European research infrastructures 
complementing existing forms at national and European level; it also considers the empowerment 
from  the  legislator  to  the  European  Commission  for  conferring  the  "European  Research 
Infrastructure" status.  

5.1. 

Option 1: No specific action at European level 

Under  this  option,  stakeholders  in  new  European  research  infrastructures  projects  have  to  find  by 
themselves  the  legal  instrument  that  would  best  correspond  to  their  needs.  The  "no  EU  action"  is  a 
standard  scenario  that  must  be  taken  into  account  in  the  evaluation  of  impacts.  It  provides  a 
benchmark against which to measure other options. 

Existing  research  infrastructures  are  operating  under  a  variety  of  legal  forms  or  legal  frameworks. 
These have been examined as regards their suitability for research infrastructures during the last two 
years  (see  section  2)  and  are  briefly  described  below.  They  are  regrouped  into  the  three  following 
categories according to their legal base: international law, Community law or national law.  

i) 

Legal framework available under international law 

Intergovernmental agreements 

Organisations established through intergovernmental agreements and have a legal personality which is 
governed  by  international  law.  For  example,  the  European  Organisation  for  Nuclear  Research 
(CERN)  was  founded  in  1954  as  the  first  European  research  organization  based  on  an  inter-
governmental  agreement  and  was  a  model  for  other  scientific  organizations  such  as  the  European 
Molecular Biology Laboratory (EMBL) and the European Organisation for Astronomical Research in 
the Southern Hemisphere (ESO). A more recent example is the International Thermonuclear Energy 
Reactor (ITER)30. A list of existing Intergovernmental research infrastructures is given in annex 3. 

These  agreements  are  concluded  by  intergovernmental  conventions  between  states  and  other 
international subjects. Usually they are made of a number of standard provisions. These encompass the 
legal personality, the establishment of the organisation and its purpose, the members and organs, an 
accession clause and the settlement of disputes.  

These organisations operate under their own rules and by laws regulating a wide range of issues such 
as  staff  rules,  financial  rules  and  procurement  procedures.  The  financial  contributions  of  Member 
States  are  either  fixed  by  negotiations  (ITER)  or  calculated  according  to  the  net  national  income  of 
each  country  (CERN).  Prior  to  the  agreement,  there  are  often  long  discussions  between  the  partners 
about the funding of resources, the site and all other necessary elements to commission and to operate 
the facility. 

30 

The  Joint  Implementation  Agreement  was  signed  on  21st  November  2006  (Annex  to  Council  of  the 
European Union 212731/06 of 21.9.2006) 

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This  legal  form  typically  allows  significant  advantages  such  as  tax  exemptions  (VAT  and  salary 
taxes)31. Regarding staff policy, the specific status of personnel (international civil servant or United 
Nation  types),  with  privileges  and  immunities,  makes  it  possible  to  attract  very  highly  skilled 
collaborators.  The  50 years  experience  of  CERN,  and  the  more  recent  experience  of  ITER,  makes  it 
feasible to emphasise the well established long-term advantages, constraints and/or parameters, which 
can be drawn from an intergovernmental agreement or convention.  

ii) 

Legal frameworks available under Community law 

European grouping of territorial cooperation (EGTC) 

This is a new cooperation instrument at Community level, based on Article 159 of the Treaty, for the 
creation  of  cooperation  groupings  in  the  Community  territory.  The  objective  of  an  EGTC  is  to 
facilitate  and  promote  cross-border,  trans-national  and/or  interregional  cooperation  between  its 
members, primarily regional and local or other public bodies, but covering national authorities as well, 
with the aim of strengthening economic and social cohesion32. This may include using it for research 
purposes, as research is recognised as a tool for fostering regional development. EGTCs can be set up 
by  national  research  authorities  only  and  may  therefore,  in  some  cases,  be  used  for  the  purpose  of 
European research infrastructures. 

European Economic Interest Grouping (EEIG) 

The EEIG is explicitly designated as a means to “cooperate effectively across frontiers”33. Its purpose 
is to facilitate or develop economic activities of its members. The activity of the EEIG must be related 
to the economic activities of its members and may not replace them. It can be formed by at least two 
natural  persons  or  companies  as  well  as  other  legal  bodies  governed  by  public  or  private  law 
(including  chambers  of  commerce,  research  centres,  universities,  local  authorities)  from  at  least  two 
different  Member  States  of  the  European  Economic  Area  (EEA).  The  EEIG  has  legal  capacity  and 
may represent its members towards third parties. The members of the grouping have unlimited joint 
liability for its debts of all kind.  

The European Cooperative Society (ECS) 

Its purpose is to complete the EU internal market and to provide a legal framework for cooperatives on 
a Community scale34. It is considered that the operating principles of cooperatives are “different from 
those of other economic agents” in the sense that they require a democratic structure and distribution 
of  net  profits  on  an  equitable  basis,  with  a  very  strong  employees'  participation.  As  with  all 
cooperatives under domestic law, its main feature is the supply of goods and services. Consequently, 
its focus is the participation in economic activities, which rules out the suitability for scientific large 
scale facilities.  

European Company (also known as Societas Europaea SE) 

This  legal  framework  derives  from  Council  Regulation  (EC)  No.  2157/2001  of  8
October  2001  and 
Council Directive 2001/86/EC as regards the involvement of employees. Following a long discussion 
on how to enable public limited companies (i.e. plc) to carry on their business on a Community scale, 
this  regulation  aims  at  facilitating  the  creation  and  management  of  companies  with  a  “European 
dimension”. 

31 
32 

33 
34 

"Very Large Scientific Facilities in Europe: Analysis of Institutional Co-operation", OCDE/GD(95)80. 
The  (Regulation  (EC)  No  1082/2006)  is  the  first  EU  instrument  offering  a  legal  framework  to  set  up  a 
legal body under Community law for territorial cooperation. 
Council Regulation (EEC) No 2137/85 of 25 July 1985 on the European Economic Interest Grouping.  
Council Regulation (EC) No. 1435/2003 of 22nd July 2003. 

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A European Company can only be created if existing companies in more than two EU Member States 
(MS)  are  concerned.  It  is  exclusively  foreseen  in  4  cases:  i)  by  the  merger  of  two  or  more  existing 
public  limited  companies  from  at  least  two  different  EU  Member  States;  ii)  by  the  formation  of  a 
holding company promoted by public or private limited liability companies from at least two different 
MS; iii) by the formation of a subsidiary of companies from at least two different MS and iv) by the 
transformation  of  a  public  limited  company  which  has,  for  at  least  two  years,  had  a  subsidiary  in 
another MS. The European Company addresses primarily the needs of large companies, whose capital 
is divided into shares. They may operate under a European form, on the basis of the rules of the SE 
Regulation and SE Directive as implemented by the MS.  

iii) 

Legal frameworks under national law 

Companies 

Companies are often used to set up research infrastructures in Europe because they are well adapted to 
public-private  needs  and  are  better  integrated  into  the  legal  framework  of  the  country  where  the 
research  infrastructures  are  located  (e.g.  French  Société  civile,  UK  Limited  liability  Company  (Ltd), 
German Gesellschaft mit beschränkter Haftung (GmbH)). There are many different legal types, most 
of which are limited liability companies. The shareholders have a limited liability in proportion to their 
contribution to the capital. One distinguishes non-profit making companies in which members wish to 
develop  a  specific  activity  from  commercial  and  profit-making  ventures  in  which  the  shareholders 
invest  a  capital  essentially  for  their  financial  interest.  Generally,  companies  can  be  set  up  with 
partners, public or private, coming from the host country and/or from any other state.  

Foundations 

This legal form is typical for non-profit organisation, governed by national law. In The Netherlands, 
this legal form is commonly used for research organisations. It emphasises the non-profit character of 
the  research  work  and  allows  for  a  flexible  governance  structure  with  a  board  consisting  of 
representatives from the stakeholders/financing parties and a management, reporting to the board, but 
having full authority for the daily management of the organisation.  

AISBL (international non-profit organisation under the Belgian Law) 

This  legal  form  is  typical  for  non-profit  organisation,  governed  by  the  Belgian  national  law,  but 
allowing international partners and activities. It allows for a flexible governance structure with a board 
consisting of representatives from the stakeholders/financing parties and a management, reporting to 
the board, but having full authority for the daily management of the organisation.  

5.2. 

Option 2: Coordination action at EU level for the development of best practices 

Option 2 corresponds to a "light" intervention from the EC and is a "soft" option between option 1 (no 
EU  action)  and  option  4  (new  legal  framework).  It  could  be  implemented  by  the  European 
Commission by bringing together those people who are currently experiencing the problems in setting 
up European infrastructures and establishing codes of good practice so that each new partnership does 
not have to re-invent the wheel.  

The  Commission,  in  particular,  could  ensure  that  the  results  of  the  work  carried  out  on  legal  issues 
within the EC funded "Preparatory phase for the projects in the ESFRI Roadmap" are disseminated as 
widely as possible.  

EN 

18 

   EN 

The  purpose  of  the  "preparatory  phase"  instrument,  based  on  a  variable  geometry  approach,  is  to 
provide  catalytic  and  leveraging  support  to  the  ESFRI  projects35  helping  them  to  reach  the  level  of 
maturity  required  to  enable  their  construction.  The  EC  contracts  provide  a  framework  to  facilitate 
decision-making between the partners and to address many critical issues that need to be resolved to 
make the project move forward. EC funding is providing support, in particular, to clarify the specific 
needs  of  each  project  and  to  identify  the  most  appropriate  legal  and  financial  basis  for  the  new 
infrastructures.  

In  addition,  the  support  to  possible  ERA-NETs  projects  could  be  an  efficient  way  to  help  Member 
States coordinating their Research Infrastructures-oriented actions. 

The  dissemination  of  the  information  coming  out  of  these  projects  should  be  of  great  benefit  to 
stakeholders.  This  information  could  be  further  compiled  into  practical  guidelines  comprising  a 
compendium  of  possible  legal  forms  identifying  their  main  strengths  and  weaknesses.  In  the  future, 
this should avoid each consortium having to repeat the same assessment work and to converge more 
quickly to the best legal form. 

5.3. 

Option 3: Development of Joint Undertakings 

Under this option the Community would develop Joint Undertakings for the new European research 
infrastructures  projects.  The  decision  to  set  up  a  joint  undertaking,  based  on  Article  171  of  the  EC-
Treaty36, is made by the Council based on a proposal from the European Commission. The statutes or 
the  articles  of  association  of  a  joint  undertaking  are  not  fixed  anywhere  and  therefore  it  is  a  legal 
instrument which theoretically leaves a lot of freedom to the founding members. 

This possibility has been used recently, for the GALILEO satellite navigation system and for the FP7 
Joint Technology Initiatives "Clean Sky", "ENIAC", "IMI" and "Artemis". The GALILEO experience 
shows  that  the  joint  undertaking  is  an  adequate  structure  for  a  large  scale  project.  It  ensures  the 
coherent management of all funds allocated to the project. The governance structure is robust with a 
clear line of authority and responsibility covering scientific, technical, administrative and commercial 
aspects of the facility. Decisions taken by the Administrative Board are implemented by the Executive 
Committee, assisted by the Advisory Committee under the guidance of the joint undertaking Director.  

However, the setting up of Joint Undertakings requires a very strong Community involvement. In all 
the above examples this ended up with the Community becoming a member of the joint undertaking 
and  the  main  financial  contributor.  The  structures  thus  created  have  all  the  characteristics  of 
"Community bodies" with the corresponding characteristics and constraints i.e. application of the Staff 
Regulation for the labour and social security law, of the Protocol on Immunities and of the Financial 
Regulation of the European Communities. 

Considering the present situation in Europe where Member States wish to continue to play a central 
role  in  the  development  and  financing  of  research  infrastructures,  the  limited  funding  available  for 
research  infrastructures  at  Community  level  and  the  possible  subsequent  administrative  and 
managerial  difficulties,  it  is  clear  that  the  development  of  Joint  Undertakings  for  the  new  European 
research infrastructures could be only considered in exceptional circumstances. 

35 

36 

Thirty four ESFRI projects are now supported for the "preparatory phase" following the first FP7 call for 
proposals (Call: Infrastructures-2007-1: "Research infrastructures" part of the Capacities Programme).  
Article  171  -  The  Community  may  set  up  joint  undertakings  or  any  other  structure  necessary  for  the 
efficient execution of Community research, technological development and demonstration programmes. 
Article  172  -  The  Council,  acting  by  qualified  majority  on  a  proposal  from  the  Commission  and  after 
consulting the European Parliament and the Economic and Social Committee, shall adopt the provisions 
referred to in Article 171. 

EN 

19 

   EN 

                                                 
5.4. 

Option 4: Development of a dedicated legal framework at Community level 

The legal basis is Article 171 of the EC-Treaty37 which gives power to the Community to set up joint 
undertakings  or  any  other  structure  necessary  for  the  execution  of  Community  research.  This 
interpretation of statutory powers in the Treaty is corroborated by Article 163 paragraph 2 of the EC 
Treaty  which  empowers  the  Community  to  remove  any  legal  and  fiscal  obstacles  for  research 
institutions to enable collaboration beyond borders.  

Article  171  EC  Treaty  requires  that  each  European  Research  Infrastructure  (ERI)  is  set  up  by  the 
legislator.  This  means  that  each  ERI  would  have  to  be  adopted  every  time  by  the  Council  in  the 
consultation procedure upon proposal by the Commission. The proposed Regulation, however, would 
provide an empowerment to the Commission, subject to a Comitology procedure, and therefore would 
provide a quicker process, as  well  as "batch per batch" approvals instead of individual decisions. In 
addition  to  providing  the  main  characteristics  of  the  legal  form  for  ERIs,  the  foreseen  Regulation 
would set out the rules and procedures concerning their establishment: 

–  The  founding  members  should  take  the  initiative  and  draw  up  the  Statutes  and  further 

accompanying documents required and submit the application to the Commission.  

–  It  will  be  then  up  to  the  Commission  to  examine  the  file  and  adopt  a  decision  to  create  the 

"European Research Infrastructure (ERI)". 

–  The decision establishing the ERI would come into effect after publication in the Official Journal 
of the European Union. The Statutes would be annexed to the Decision. An amendment to the key 
elements of the Statutes would have to be adopted similarly. 

This  option  is  based  on  the  extensive  work  carried  with  ESFRI,  legal  specialists,  stakeholders,  the 
sounding board and the inter-service group, which led to the identification of a gap currently existing 
at  European  level  since  there  is  no  provision  for  a  legal  form  dedicated  to  European  Research 
Infrastructures.  In  addition,  the  following  features  that  a  new  legal  form  ideally  should  have  were 
identified: 

–  it must provide a legal personality which is recognised in all Member States; 

–  it  must  reflect  the  spirit  of  a  truly  European  venture,  although  allowing  participation  of  non-

European countries;  

–  it  should  be  flexible  enough  to  adapt  to  the  requirements  of  the  different  ERIs,  easy  to  use  and 

speeding up the process of setting up the infrastructures; 

–  it should provide some of those privileges and exemptions which are allowed at a national level to 

international research organisations. 

The  flexibility  needed  to  adapt  to  the  requirements  of  specific  infrastructure38  would be  provided by 
the  specific  statutes  to  be  adopted  by  the  members  of  each  infrastructure,  in  complement  to  the 
common legal framework defined by the Regulation.  

Some key characteristics of an ERI to be defined by the framework Regulation are: 

i) 

37 

38 

EN 

Membership:  

The use of Article 308 EC Treaty could have been used, but only in the absence of any other possibility 
allowing  attaining  one  of  the  “objectives  of  the  Community”.  This  was  not  the  case  since  article  171 
provides for this possibility. 
There  may  be  different  requirements  for  research  facilities  in  medical  and  nuclear  sciences  in 
comparison to astronomy or environmental disciplines. 

20 

   EN 

                                                 
The membership of ERIs will be limited to Member States, third countries and international 
organisations  with  the  possibility  of  participating  countries  to  mandate  public  or  private 
entities with a public-service mission to exercise their rights and duties on their behalf.  

The  participation  of  private  legal  entities  with  a  commercial  character  is  excluded  by  the 
nature of the ERIs (orientation towards basic research activities, constructed and operated 
by public funds, widely open to the European scientific community). The objective is to help 
Member  States  (and  Associated  States)  to  develop  Research  Infrastructures  which  they 
cannot realise at national level because of lack of resources, competences or because of a 
much wider scope than the national one. The nature of existing national research facilities is 
public  (this  is  the  case  in  all  fields  e.g.  the  synchrotrons  Soleil  (FR)  or  Diamond  (UK)  in 
physics,  oceanographic  boats  in  the  field  of  environment  or  databases  on  ageing  in  social 
sciences)  and  the  development  at  European  level  should  reflect  the  public  nature.  In 
addition, the opening to public private partnerships would exclude the possibility to obtain 
advantages such as VAT exemption, generating therefore more difficulties in the negotiation 
of  the  agreement  between  different  Member  States  (see  complementary  remarks  in  chapter 
6).  The  opening  to  public  private  partnerships  might  in  addition  raise  issues  of  State  aid 
and/or generate potential claims for distortion of competition or limitations in the access to 
such  facilities;  however,  the  public  nature  of  such  facilities  should  not  exclude  the 
possibilities of collaboration projects with industry or possible sponsorship from industry.  

ii) 

Seat:  

It is foreseen that an ERI shall have its seat in a Member State or in an Associated State to 
the Community Research Framework Programme. In this later case there would need to be 
an  instrument  (e.g.  international  agreement)  or  a  specific  declaration  from  the  Associated 
State stipulating that it is bound by the stipulations of the Regulation.  

iii) 

Applicable law:  

An ERI shall be governed by  

a) 

b) 

c) 

d) 

the Community law and, in particular, the Regulation;  

by the law of the State, where the ERI has its statutory seat, in matters not regulated 
by Community law 

in derogation from letter (b), by the law of the States in which the ERI operates, and  

by its Statutes and by its implementing rules adopted in conformity with its Statutes. 

EN 

21 

   EN 

ERIs will not be "Community bodies"  

Care  will  be  taken  to  ensure  that  ERIs  will  not  be  "Community  bodies"  under  Article  185  of  the 
Financial Regulation. The cumulative conditions for considering an entity as a Community body are as 
follows.  It  must:  a)  be  a  body  set  up  by  the  Communities;  b)  have  legal  personality  and  c)  actually 
receive contributions charged to the Communities' budget. 

Whereas  each  ERI  would  correspond  to  the  first  two  options  it  is  not  foreseen  that  the  Community 
itself would be a primary financer and therefore condition c) would not apply. However, this will not 
exclude the possibility for an ERI to benefit from Community funds in the context of calls for proposal 
to the EC Framework Programme. 

EN 

22 

   EN 

 
 
 
 
 
 
Desired characteristics of a dedicated legal instrument 

The following describes shortly the main characteristics of a dedicated legal instrument for European 
research infrastructures (ERI) as they emerge from the consultation of stakeholders : 

Nature: The nature of the ERI - its scientific non-commercial character - and its purpose - to provide 
world-class  research  services  to  researchers  with  due  attention  to  the  principle  of  excellence  -  will 
need  to  be  guaranteed.  The  "European"  character  should  be  clearly  defined  and  could  be  seen  as 
fulfilling  two  cumulative  conditions  in  terms  of  membership  and  of  pan-European  interest.  These 
characteristics would have to be recognised at its creation through appropriate procedures. An ERI 
would also be subject of a periodic international evaluation. 

Membership:  The  ESFRI  Roadmap  includes  infrastructure  projects  initiated  by  governments  only. 
Therefore, membership is limited to Member States, third states and intergovernmental organisations.  

Seat: The ERI's central administration should be located in the EU or within an Associated State.  

Statutes: The statutes should be proposed by the founding members themselves, indicating the basic 
principles  for  the  management  of  the  research  infrastructure;  a  particular  obligation  within  these 
statutes will be to demonstrate the nature of a European Research Infrastructure. 

Organs: The ERI should identify its organs and their competences in its statutes. The following organs 
at  least  should  be  foreseen:  (1)  an  assembly  of  members  which  should  have  the  widest  possible 
competences; (2) an executive director - or board of directors - who implements the ERI's policies and 
is the ERI's legal representative. 

Staff: The basic principles of employment will be defined in the Statutes thereby offering stakeholders 
the maximum of flexibility. 

Liability of members: Provisions for limited liability of the members in respect of the obligations of the ERI 
are to be provided. 

Exemptions:  VAT  exemptions  could  be  provided  by  the  states  where  the  ERI  will  have  its  seat  or  where  its 
facilities  are  located,  as  it  is  the  case  for  international  organisations.  Arrangements  common  in  international 
organisations for public procurements could also be requested if appropriate. 

6. 

 ANALYSIS OF IMPACTS OF THE POLICY OPTIONS 

The  identified  four  policy  options  consider  the  use  of  specific  legal  forms  to  create  Europe  wide 
partnerships for the construction and operation of European Research Infrastructures.  

In  sub-section  6.1  we  summarise,  in  general  terms,  the  indirect  economic,  social  and  environmental 
impacts  that  the  research  infrastructures  to  be  developed  would  have.  In  section  6.2  we  assess  the 
different options by analysing their strengths, weaknesses and impacts on the policy objectives stated 
in section 4.1. Finally, in section 6.3 we draw overall conclusions, provide a comparative assessment 
of the different policy options and identify, on that basis, the preferred option. 

EN 

23 

   EN 

 
 
 
6.1. 

Economic, social and environmental impacts of research infrastructures  

i) 

Socio-economic impacts 

Knowledge  in  general  and  scientific  knowledge  in  particular  is  the  basis  of  competitive,  modern 
economies.  That  is  why  Europe's  ability  to  sustain  a  competitive  edge  in  knowledge  creation  and 
innovation is at the core of the Lisbon Strategy for Growth and Jobs. The existence of and access to 
leading research infrastructures plays a key part in maintaining Europe's competitiveness in research 
and innovation.  

The example of the Grenoble scientific polygon is often given as a key example for its strong socio-
economic impacts. Major  research infrastructures were implanted  here during the second half of the 
20th century: ILL (Neutron scattering), ESRF (Synchrotron Radiation) and EMBL (Structural biology). 
Several  research  laboratories  are  also  on  the  same  site:  those  from  CEA,  CNRS,  from  the  Joseph 
Fourier  University;  ST  Microelectronics  Laboratories;  a  very  large  nanotechnology  laboratory 
(MINATEC)  as  well  as  an  Engineering  and  a  Management  school.  This  represents  about  6000 
persons;  including  1100  post-docs  and  PHD  students,  5000  publications,  and  300  patents  per  year. 
This example shows that state-of-the-art research infrastructures with the appropriate critical mass of 
scientific research skills offer the conditions that are required to carry out cutting-edge research and to 
develop the required high level human capital.  

Research  infrastructures  also  play  a  clear  societal  and  economic  role  by  generating  discoveries  and 
opportunities for new industrial applications. For example the work carried out during the recent years 
in  several  research  facilities  in  the  Copenhagen-Malmö-Lund  region  has  today  led  to  the  so-called 
"Medicon  Valley",  a  Danish-Swedish  science,  innovation  and  business  cluster  set  up  in  an 
INTERREG project. It is a striking example of how collaboration across borders can pay off and how 
science  can  drive  economic  development.  The  legal  structure  behind  Medicon  Valley  is  based  on 
contracts  between  the  involved  universities.  In  ten  years,  this  region  has  established  itself  as 
Scandinavia's  strongest  life-science  cluster.  Around  300  companies,  employing  40,000  people,  are 
currently engaged in R&D activities and ten to 15 start-up companies are established every year. 

The  landscape  of  Europe shows  that, where  European  Research  Infrastructures  have  their  site,  often 
“technology clusters” or so-called technology parks can be found. Such strategic centres offer better 
possibilities  for  interdisciplinary  research  and  greater  attraction  to  high-tech  firms.  The  innovative 
results of research conducted in these infrastructures have therefore a multiplier effect, creating new 
economic  activities  and  fresh  employment  opportunities.  Moreover,  high-quality  centres  attract 
talented researchers and as such, they are powerful tools for stimulating their trans-national mobility. 

ii) 

Environmental and societal impacts 

Society  faces  many  challenges.  These  include  global  warming,  energy  production,  water  supplies,  a 
sustainable  environment,  the  threat  of  terrorism,  or  quality  of  life  for  an  ageing  population.  For 
example, the simulation of global warming and reduction of the ice in the arctic and Antarctic regions 
is based on the continuous monitoring of various parameters by well-cooperating distributed facilities 
from different countries and on the efficient use of high power computers treating data filed for many 
years in large digital scientific repositories.  

As another example, the current results of the SHARE ESFRI project (dealing with the setting-up of a 
pan-European  database  (15  countries  today)  on  health,  ageing  and  retirement)  show  that  improving 
health generates higher employment among older workers and thus pays for itself; woman live longer 
but men are less sick -- and this differs according to socio-economic status; analysis of data also shows 
that family support for the elderly is not vanishing, it is still strong not only in the Mediterranean but 
also in the North of Europe. 

The  future  of  our  planet  needs  research  on  biodiversity  and  implies  keeping  collections  of  plants, 
seeds,  etc.  In  addition,  biodiversity  e-science  enables  "distributed large  scale"  research.  This  will  be 
the only way to participate in new developments in this area. This also corresponds to the objectives of 

EN 

24 

   EN 

the  ESFRI  LIFEWATCH  project  currently  being  developed  as  a  major  component  of  the  European 
contribution to GEOSS.  

These few examples show that research infrastructures are one key instrument in bringing together a 
wide diversity of stakeholders to look for solutions to many of the above-mentioned problems. They 
can  be  seen  as  a  focal  point  for  such  interactions,  in  addition  to  inspiring  new  research  ideas  and 
attracting young enquiring minds.  

iii) 

Which European S&T system actors and stakeholders would be affected? 

In the first place the community of individual researchers and of companies, universities and research 
institutions  carrying  out  research  would  be  positively  affected  by  the  creation  of  new  European 
research  infrastructures.  Research  infrastructures,  via  their  contributions  to  the  achievement  of  the 
Lisbon Strategy for Growth and Jobs also have the potential to affect the lives of all European citizens. 
In  addition,  the  impacts  of  research  infrastructures  spread  beyond  the  EU,  as  they  affect  the  global 
research community (as participants) and societies worldwide (as beneficiaries). 

Apart of the new facilities to be built (see ESFRI roadmap), there are today more than 600 identified 
research infrastructures within the different Member States which could benefit from integration into 
distributed structures, managed at pan-European level to increase their efficiency. More than 25,000 
engineers and technicians work in these facilities, which in turn serve more than 240,000 scientists39.  

As already mentioned, the new Member States and those States which do not currently host European 
Research Infrastructures would be positively affected by such a new legal framework. 

39 

Survey realised in 2006 by the EC and the ESF– see  
http://www.ec.europa.eu/research/infrastructures  

EN 

25 

   EN 

                                                 
6.2. 

Main strengths, weaknesses and impacts of the different policy options 

Option 1: No specific EU action 

This is an option where the Community would not act. Member States will continue using the existing 
instruments, with identified inconveniencies. The table below summarises most of the main strengths 
and  main  weaknesses  of  the  current  legal  forms  and  frameworks.  This  information  was  gathered 
following the extensive consultation carried out between 2006 and 2008 and shows that the existing 
legal  instruments  all  have  strong  limitations  for  the  implementation  of  new  European  research 
infrastructure. 

legal form 

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Main weaknesses  
•  Heavy  and  lengthy  negotiation  procedures  for  reaching  a 

formal agreement between Member States 

•  The  salaries,  privileges  and 

immunities  for  staff  not 

Main strengths 
•  Sound  and  complete  convention  or  treaty  (mission, 
function  and  structure)  binding  the  partner  on  a  long-
term solid ground. 

considered justified for most ERIs  

•  Difficulty to modify / amend such agreements 

•  Clear  management  and  governance.  Attractive  salaries, 
privileges and immunities for staff. Advantages such as 
tax exemptions (VAT and salary taxes) 

•  Possible co-operation with non-EU states 

•  Legal  forms  for  companies  are  specific  to  each  country 
(some countries do not even have such legal forms). There is 
reluctance  by  partners  from  different  countries  to  accept  a 
foreign legislation  

•  Does  not  clearly  reflect  the  spirit  of  a  truly  European 
endeavour  that  should  correspond  to  a  European  research 
infrastructure 

•  Well  integrated  in  the  country  where  the  research 

infrastructure is located 

•  Clear  management,  governance  and  accountability; 
avoid also high costs of intergovernmental institutes.  

•  Flexibility:  partnership  (public,  private,  European,  non 

European); staff policy 

•  Usually, private procurement regulations 

•  Aim  of  the  EGTC  of  strengthening  economic  and  social 
cohesion  could  limit  openness  and  scientific  development 
possibilities of the research infrastructure.  

•  Non-European  institutions  /  authorities  can  only  become 

members of EGTC under certain conditions. 

•  The EGTC as a legal body has unlimited liability for its debts
(up  to  its  assets),  but  as  a  rule  there  is  a  residual  unlimited 
liability of its members, if assets are not sufficient. 

•  The  Regulation  does  not  offer  any  specific  rules  or 
derogations on taxation, staff rules or public procurement. 

•  Can  be  attractive  for  medium  size  European  research 
infrastructures using Cohesion Policy funds; can even be 
used  for  large  scale  European  research  infrastructures 
outside  Cohesion  Policy  Funds,  where  national 
authorities would be the EGTC's members. 

•  As  a  legal  instrument  under  Community  law,  EGTC 

provides for the required European image. 

•  Can be the solution for such infrastructures where non-
EU members are neither needed nor wanted anyway.  

•  Difficulty for non European countries to join 

•  None since not appropriate for ERIs. 

•  Unlimited liability/joint liability of members 

•  Upper limit of number of employees  

  •  Not  appropriate  for  ERIs  since  they  are  for  groupings  of 
)
S
C
E

economic nature 

• 

(

y

•  European Company addresses public limited companies that 
already  exist  and  have  their  seat  in  the  EU  Member  States. 
This  does  not  coincide  with  the  set-up  of  new  research 
infrastructures. 

• 

Idem above. 

Idem above. 

•  Laws  from  some  countries  other  than  The  Netherlands  or 

•  Clear management and governance but accounting rules 

Germany are restrictive for foundations 

adapted to industrial use  

•  Avoid  costs  of  intergovernmental  institutes  and  allows 

flexible staff policy  

C
T
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G

I
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p
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.

C
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EN 

26 

   EN 

 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
The following table summarizes the fitness for purpose of such an option: 

Policy objectives 

Option 1: No specific action at European level 

Ease and speed-up the 
process of setting-up new 
European research 
infrastructures 

No impact according to current situation. Stakeholders would have to find on their 
own the best legal solution for their problem. Clearly, according to the experience of 
the last 20 years in Europe, the national of intergovernmental routes are not easy. The 
example of the Intergovernmental organisations, such as CERN, ESO, EMBL, etc, 
shows that several years are required to set-up such facilities, due to the international 
Treaty needed to be set-up first. As far as national schemes, the reluctance of other MS 
to enter into a partnership based on another national law generates long negotiations, 
as shown with the current negotiations on the XFEL or FAIR projects. The existing 
EGTC scheme could however prove to be quite relevant for the setting-up of some 
partnerships. 

Increase the number of 
European research 
infrastructures  
across ERA 

The current situation in Europe shows that no new research infrastructure has been set-
up since the last 22 years apart of ITER (where the EC had a leading role). Clearly, 
this option - meaning no specific action from the European Commission – would not 
lead to any impact on this criterion. 

Contribute to the further 
development of a European 
policy for research 
infrastructures 

The efficient and timely implementation of any policy depends on the availability of 
tools, be they financial incentives or legal instruments. A major step has been done 
since two years with the development of the ESFRI roadmap and the emergence of 35 
new projects. Almost 3 over 4 research / science stakeholders in Europe believe today 
that a European legal framework should be developed to support such development. In 
not acting in this field the Community would clearly not follow-up its political 
ambitions nor support the development of a true European policy in this field. 

Provide a cost efficient 
procedure for setting-up new 
European research 
infrastructures 

As explained above, the time and human resources needed when using national or 
intergovernmental frameworks generate a low cost-efficiency. The EGTC scheme 
could however be quite cost-efficient, as the approval by the national authorities has to 
be done within three months after the submission of the necessary documents. 
However, more experience is needed. 

Provide all the features that a 
legal form should have for 
European research 
infrastructures  

Only some of the existing schemes have the potential to provide the features (see 
details on page 23) that a legal form ideally should have for European research 
infrastructures. The only schemes possible seem to be the ones used by the current 
intergovernmental organisations.  

Increase of the positive image 
of the EU at international 
level through the 
reinforcement of ERA 

This option, meaning no specific action from the European Commission, would imply 
that the EC will be seen as passive, not using its power of initiative to improve the 
efficient execution of Community research actions. 

Contribute to achievement of 
socio-economic, 
environmental and societal 
impacts 

This option would not stimulate the emergence of a number of new ERIs, therefore the 
indirect positive socio-economic, environmental or societal impacts as described in 
section 6.1 would be difficult to be largely increased according to the present state of 
the art. 

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Option 2: Coordination action at EU level for the development of best practices 

Coordination  is  clearly  an  activity  for  which  the  European  Commission  has  a  long  and  positive 
experience. It would help stakeholder converge more quickly to the best possible existing legal forms 
corresponding their needs. This will not remove, of course, the inherent limitation that existing legal 
forms have as regards their utilisation fro ERIs.  

The information below summarises the main strengths and weaknesses of such an option. 

Main strengths 

•  Helps stakeholder identify the current legal form best adapted to their needs; 

•  Through coordination and joint reflection work, this option may indirectly contribute to the long-

term development of a European decision-making process for ERIs;  

Main weaknesses 

•  Coordination  actions  are  not  sufficient  to  develop  a  more  favourable  environment  for  the  timely 

development of European research Infrastructures; 

•  Does not really ease the existing processes; 

•  Does not really increase the dynamic image of ERA. 

In addition this option, meaning just a coordination action from the European Commission, would not 
totally  correspond  to  the  needs  expressed  by  the  research  and  science  stakeholders  nor  lead  to  an 
optimal timing for the development of new research facilities at European level.  

Coordination  has  its  limitations.  As  indicated  by  the  coordinator  of  BBMRI  (an  ESFRI  roadmap 
project  currently  in  its  "preparatory  phase")  "BBMRI,  as  such  a  distributed  infrastructure,  with 
biobanks related to hospitals and to research institutes faces the fact that such biobanks do not have 
an  independent  legal  status.  A  European  status  should  help  facing  this  complexity  by  providing  the 
possibility  for  these  institutions  to  accept  the  European  status  for  one  of  their  activities,  i.e. 
biobanking.  BBMRI should  also  be  able to  recruit  staff  for  the  network:  these  could  be  in  different 
centres but receiving the same salaries, which will help reducing brain drain from low income states". 
Coordination  would  clearly  not  help  in  developing  for  European  infrastructures  formed  as 
"distributed" structures. 

This option should, however, be continued and further developed in parallel to the development of a 
new legal framework. This would allow implementing the ESFRI roadmap faster, as a complementary 
combination of both options offers flexibility and choice of legal forms adapted to the individual case, 
while ensuring strategic coherence and excellence.  

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The following table summarizes the fitness for purpose of such an option: 

Policy objectives 

Option 2: Coordination action at EU level for best practices 

Ease and speed-up the process 
of setting-up new European 
research infrastructures 

A coordination action could simplify the work of stakeholders by helping them to 
identify amongst existing legal forms the one best adapted to their needs. However, 
existing legal forms have inherent limitations as regards their utilisation for European 
research infrastructures and therefore the impact of this action, according to 
stakeholders, can only be very limited.  

The simplification of the work to be carried though this sharing of information would 
speed the time needed for the required legal work. Current experiences (e.g. the FAIR 
and X-FEL projects) show that one or two years could be gained according to a 
situation where no coordination would exist. However, for the same reason as above 
the impact can only be very limited. 

Increase the number of 
European research 
infrastructures  
across ERA 

The impact can only be moderate since existing legal forms have in most cases several 
limitations. The coordination in the frame of the Preparatory Phase of the today 34 
ESFRI projects would increase the awareness of the different stakeholders across 
ERA with the possible consequence of more initiatives being launched. 

Contribute to the further 
development of a European 
policy for research 
infrastructures 

Such coordination activities might only involve Member States to a very limited 
extent. Therefore, their impacts on the development of a European policy and/or 
decision-making process for research infrastructures will be limited. Coordination 
actions are also not sufficient to develop a more favourable environment for the 
timely development of ERIs.  

Provide a cost efficient 
procedure for setting-up new 
European research 
infrastructures 

This sharing of information and exchange of good practices would provide a more 
cost efficient procedure since it would avoid each consortium having to repeat the 
same assessment work and to converge more quickly to the best legal form. However 
again since the Community would answer only a minor part of the real problem the 
impact can only be very low. 

Provide all the features that a 
legal form should have for 
European research 
infrastructures  

Increase of the positive image 
of the EU at international 
level through the 
reinforcement of ERA 

Contribute to achievement of 
socio-economic, 
environmental and societal 
impacts 

Only a solution developed under inter-governmental agreements can provide all the 
required features. However, only very few projects would need such an approach. 

Pure coordination actions could only have a moderate impact on the problem at hand 
and therefore, necessarily, cannot contribute effectively to the reinforcement of the 
ERA and to increase the positive image of the EU.  

This option could stimulate the emergence of some new ERIs, therefore the indirect 
positive socio-economic, environmental or societal impacts as described in section 6.1 
could be moderate. 

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Option 3: Development of Joint Undertakings 

This option needs a Community approach. The decision to set up a joint undertaking would be made 
by the Council based on a proposal from the European Commission. This structure ensures the single 
effective management of a programme combining various funding sources from the public and private 
sectors. This possibility has been used for the following Joint Undertakings recently set up: Clean Sky, 
ENIAC, IMI and Artemis. Few years ago, GALILEO was also set-up as a Joint Undertaking. 

However, it should be noted that there has been no research infrastructure implemented following this 
procedure  during  the  last  20  years.  Indeed,  although  it  seems  a  rather  good  structure  for  managing 
industrial research activities, the negative impacts of Joint Undertakings, when applied to several new 
research  infrastructures  (more  than  30  during  the  next  years)  are  for  example  the  difficulty  for  non 
European  Countries  to  join  or  the  necessary  repetitive  work  which  is  implied  at  Commission  and 
Council level, and which will not be optimum in a time-efficiency perspective. 

The information below summarises the main strengths and weaknesses of such an option. 

Main strengths 

•  Clear management and governance; 

•  Sound  and  effective  financial  rules  ensure  the  effective  management  of  major  programmes 

combining public and private sources of funding; 

•  May contribute to the long-term development of a European decision-making process for ERIs; 

•  Adapted to industrial use. 

Main weaknesses  

•  Long negotiations at Council level which require very strong Community involvement and which 

do not speed up the overall process; 

•  Non easy-to-use instrument by European stakeholders since it needs initiative from the European 

Commission; 

•  Does not really provide the foundations for a European policy for research infrastructures; 

•  Difficulty for non European countries to join;  

•  Often considered as Community Bodies whenever the Community has to contribute. 

This  option,  corresponding  to  a  clear  pro-active  action  from  the  European  Commission,  would 
nevertheless  lead  to  a  time  consuming  process,  since  the  setting-up  of  every  new  research 
infrastructure would need an ad-hoc legislative process at Commission and Council level. 

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The following table summarizes the fitness for purpose of such an option: 

Policy objectives 

Option 3: Development of Joint Undertakings 

Ease and speed-up the process 
of setting-up new European 
research infrastructures 

The use of Joint Undertakings requires the initiative of the European Commission. It 
implies case by case decisions by the Council, following the procedure of Article 171. 
The procedure would be the same as for any EC initiative, requiring repeated 
discussions at Council level for everyone of the foreseen new European Research 
Infrastructures. For the stakeholders and for the Commission (who will need to 
organise a long preparatory phase before each initiative), this option will not be 
simple nor easy. 

If resources are available, notably at Commission level, the process of setting-up new 
research infrastructures will be sped-up according to the current situation. The 
example of the JTIs approved during the last few months shows that the overall legal 
process could be done in around one year, per project. 

Increase the number of 
European research 
infrastructures  
across ERA 

The proactive attitude of the Commission would have as a consequence a rather high 
impact on this criterion, with the conditions that sufficient resources are available. 
This option, based on specific Commission initiatives, could allow a take-up of some 
of the 35 ESFRI projects. 

Contribute to the further 
development of a European 
policy for research 
infrastructures 

A major step has been done since two years with the development of the ESFRI 
roadmap and the emergence of 35 new projects. In acting in this field the Community 
would clearly follow-up its political commitments and respond to the needs of the 
stakeholders. However, just setting-up Joint Undertakings cannot be seen as 
supporting sufficiently the development of a true European policy in this field. 

Provide a cost efficient 
procedure for setting-up new 
European research 
infrastructures 

Using article 171 for the setting-up of Joint Undertakings requires a proactive attitude 
of the European Commission. In addition, for the various projects envisaged, such an 
option would imply the development of individual procedures. Such an option 
requires the availability of human resources, the estimated amount of which would be 
around two person-years per project for the EC, i.e. around 70 person-years for the 35 
ESFRI projects, and about ten times more from the stakeholders' side40.  

Provide all the features that a 
legal form should have for 
European research 
infrastructures  

Such a scheme would allow providing many features that a legal form ideally should 
have for European research infrastructures.  

Increase of the positive image 
of the EU at international 
level through the 
reinforcement of ERA 

This option implies that the EC will be seen as active, using its power of initiative to 
improve the efficient execution of Community research actions. However, the 
heaviness of the procedures might not totally increase the positive image of the EU at 
international level. In addition, ERA would be reinforced through the emergence of 
new entities, but not really strengthened on its legal framework. 

Contribute to achievement of 
socio-economic, 
environmental and societal 
impacts 

This option, if resources are available, could stimulate the emergence of more new 
ERIs, therefore the indirect positive socio-economic, environmental or societal 
impacts as described in section 6.1 could be medium to high. 

40 

Based on the current experience of DG RTD with RI projects and JTIs 

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Option 4: Development of a dedicated legal framework at Community level 

The trends in the research infrastructure field are both (1) the increased complexity and cost of such 
facilities (requiring de-facto cooperation between several Member States), and (2) the development of 
distributed facilities, where several existing facilities need to integrate their activities at pan-European 
level to respond to the ever increasing scientific and societal challenges. In both cases the setting-up of 
international consortia is needed. 

Considering  that  many  different  partners  from  different  countries  would  need  to  participate  in  the 
setting-up  of  such  new  entities,  an  important  advantage  of  a  dedicated  legal  instrument  at  European 
level is that such a Regulation would provide a legal personality which is recognised and applicable 
with  immediate  effect  in  every  EU  Member  State  and  would  provide  the  required  conditions  for 
effective work at European level.  

Such status would also allow to better access funding sources, in particular EIB. 

The Regulation would provide for an empowerment from the legislator to the Commission (EC) for 
conferring  a  status  of  "European  research  infrastructure"  –  ERI.  This  would  ease  the  application 
process.  The  Regulation  would  be  complemented  by  clear  procedures  by  which  this  status  will  be 
conferred by the legislator.  

•  This would make it possible for interested entities to take the initiative and to draw up the statutes 

based on this framework regulation; 

•  This would ensure recognition of a reference scheme all over Europe; 
•  By providing an empowerment to the EC, ultimately a lot of time will be gained for the foreseen 

30+ new large facilities which are foreseen within the next ten years41. 

Taking  again  the  example  of  BBMRI,  the  European  status  should  enable  to  face  the  complexity  of 
integrating different national biobanks, the possibility for the different national member institutions to 
accept the European status for one of their activities and to provide integrated, multinational services 
to research institutes and laboratories; a European status would help extending the network to other 
centres and eventually build or set up new entities required by the network, for example a BBMRI - IT 
centre.  

The European Commission will ensure the overall coordination of this initiative. The European Added 
Value  will  be  mainly  linked  with  a  better  time  and  cost  efficiency  referring  to  the  other  possible 
options. It should be noted that this would not necessitate much more resources than those presently 
used (FP7 resources) to follow the preparatory phase of the new research infrastructures projects.   

41 
(1) 

(2) 

(3) 

(4) 

form 

legal 

for  such 

The four main factors for the quicker setting-up of a European research infrastructure are: 
the time saved in avoiding the repetition of negotiations, project by  project, to analyse  and discuss the 
best 
international  research  organisations,  with  related  advantages  and 
disadvantages, since this analysis would already be done at the time of setting-up the new regulation, 
the time saved in trying to find alternative solutions to deficiencies of existing instruments, the new legal 
framework providing an "on-the-shelve" complementary tool filling a real gap at Community level, 
the  fact  that  such  international  bodies  being  normally  exempted  from  VAT  would  avoid  discussions 
between Member States and Associated States about a possible unbalance in the "return on investment" 
made by these countries in case that another legal form, not subject to exemption, would be chosen. 
the time saved in avoiding discussions in each national parliament related to the approval of a needed 
international agreement, in the case that this new legal framework would not exist, whereas its existence 
would automatically allow for such recognition in every Member State.  

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The following table summarizes the fitness for purpose of such an option: 

Policy objectives 

Option 4: Development of a legal framework at Community level 

Ease and speed-up the process 
of setting-up new European 
research infrastructures 

The development of a new legal framework at European level would allow filling a 
gap in the existing legal instruments available, would help in the harmonisation of 
current processes and, through the empowerment by the Council to the European 
Commission, could simplify and ease the overall process. The procedure would avoid 
repeated discussions at Council level for everyone of the foreseen new European 
Research Infrastructures. 

This option would allow Member States funding authorities to significantly reduce the 
time  needed  for  the  identification  and  the  analysis  of  a  suitable  legal  form  by  all 
interested  financial  partners.  Considering  the  XFEL  experience,  proposing  such  a 
legal framework that can be easily adopted by all partners could have speeded up the 
ex-ante process by two years. The example of the JTIs approved during the last few 
months shows that the overall legal process could be done in around one year. 

Increase the number of 
European research 
infrastructures 
across ERA  

As under option 3, the proactive attitude of the Commission will have as a 
consequence a positive impact on this criterion. This regulation would allow a rapid 
take-up of many of the ESFRI projects (see again annex 2). This may also affect 
positively the Member States with no real experience in this field. 

Contribute to the further 
development of a European 
policy for research 
infrastructures 

In acting in this field the Community would clearly follow-up its political ambitions 
and respond to the needs of the stakeholders. In addition, the setting-up a European 
legal framework for new European Research Infrastructures will be seen as supporting 
the development of the ESFRI roadmap and of a true European policy in this field. 

Provide a cost efficient 
procedure for setting-up new 
European research 
infrastructures 

The first step relates to the setting-up of this regulation. In the second step, i.e. 
proposing a new ERI, the initiative will come from the stakeholders. The third step, 
i.e. approval of the ERI will need the follow-up of an evaluation and selection 
procedure for which the Commission is quite experienced. In addition, for the various 
projects envisaged, such an option would allow for batch per batch procedures. The 
total human resources needed would hardly exceed the current resources for the 
follow-up of the ESFRI preparatory Phases under FP7, i.e. around 35 person-years for 
the 35 ESFRI projects, and about ten times more from the stakeholders' side42. This 
means a 50% gain according to option 3. 

Provide all the features that a 
legal form should have for 
European research 
infrastructures  

As under option 3, such a scheme would allow providing many features that a legal 
form should have for an ERI, according to the wishes expressed by the research 
stakeholders. However, not passing through a formal Council procedure, this option 
would add much more flexibility than under option 3. 

Increase of the positive image 
of the EU at international 
level through the 
reinforcement of ERA 

This option implies that the EC will be seen as active, using its power of initiative to 
improve the efficient execution of Community research actions. In addition, the 
efficiency of the procedure would increase the positive image of the EU at 
international level. In addition, ERA would be reinforced through the emergence of 
new entities, as well as strengthened on its legal framework. 

Contribute to achievement of 
socio-economic, 
environmental and societal 
impacts 

This option, under the current human resources provision, would be the one 
stimulating the emergence of the maximum of new ERIs, therefore the indirect 
positive socio-economic, environmental or societal impacts as described in section 6.1 
could be high. 

42 

Based on the current experience of DG RTD with RI projects and JTIs 

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In summary, the following main strengths and weaknesses of the foreseen instrument are: 

Main strengths 

•  Responding 

to  European  political  ambition,  able 

(e.g. 
internationalisation of research; achievement of critical mass; development of distributed facilities; 
development of reference models); 

tackle  current  challenges 

to 

•  Contributing to building an EU identity around flagship scientific facilities; 

•  Providing  for  all  the  features  that  an  ideal  legal  form  should  have  for  European  research 

infrastructures, namely 

–  a legal personality which is recognised in all Member States; 

–  advantages which are allowed at a national level to international research organisations; 

–  flexibility to adapt to the requirements of the different specific infrastructures; 

–  open to non-European countries. 

•  Increase of the positive image of the European Union at international level; 

•  Easy to use and speeding-up the process of setting up an ERI, if the Commission is empowered to 

take the decision to create it. 

The stakeholders' consultation realised during the last two years, including the representatives of the 
ESFRI projects, has shown a declared interest to potentially use such a Community legal framework. 
The stakeholders also indicated that its impacts, apart of its harmonising and European nature, would 
be  linked  with  the  possible  advantages  which  could  be  conferred  to  such  new  legal  entities, 
advantages43  which  should  be  compared  with  those  benefiting  the  international  research  facilities 
when established in a specific Member State. 

Such  a  legal  framework  will  also  indirectly  support  the  reinforcement  of  a  coordination  mechanism 
leading to a better decision-making at European level, which is clearly lacking at European level for 
new research infrastructures of pan-European interest (in line with ESFRI recommendations).  

In addition to being a legal form aimed at easing the setting up of the European infrastructures on the 
ESFRI Roadmap, the ERI will allow the participation of non EC countries, which will have positive 
impacts,  either  because  they  will  bring  contributions  needed  for  the  projects  or  because  the 
infrastructures  have  to  be located  in  specific  sites  outside  the  EU.  During  the  setting  up  phase, 
the existence  of  this  Community  legal  form  should  induce a  marginal  burden  on  Associated  States, 
which  are  already  familiar  with Community  procedures.  As  for  third  countries  the  induced  burden 
should be similar to the one necessary for setting up an international organisation. 

Main weaknesses 

•  Risk of bureaucratization that may delay and limit the use of this new legal form.  

43 

VAT exemption for example is mainly intended to avoid that taxes financed by other States all accrue to 
the host  country.  VAT  exemption  should  thus  facilitate  negotiations.  On  a  broader  level,  as  research 
infrastructures  are  mainly  financed  by  public  authorities,  VAT  exemption should  have no  net direct 
impact  on  the  budgets  of  the  Member  States.  The  indirect  medium-long-term  socio-economic  impacts 
resulting  from  scientific  and  technological  advances  made  possible  by  research  infrastructures  should 
largely counterbalance the loss due to VAT exemption from the host country. 

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•  Lack of possible interest from stakeholders if ERI legal status does not bring additional advantages 
compared to competing legal forms, or at least the same advantages as existing research facilities in 
the frame of intergovernmental arrangements. 

6.3. 

Overall conclusions and comparative assessment of the different policy options 

The  main  conclusions  concerning  each  option  are  reported  below  together  with  a  summary  table 
comparing the impact of each policy option on the policy objectives. 

Option 1: No specific EU action 

This option corresponds to the situation few years ago: each consortium, through an ad-hoc process, 
tries to identify the existing legal form that could be the most appropriate for their project, according 
to  three  possible  legal  bases:  international,  Community  or  national  law.  Experience  shows  that  the 
creation  of  international  organisations  tends  to  bind  the  partners  on  a  long-term  solid  ground. 
However,  this  implies  heavy  and  lengthy  negotiation  procedures.  Moreover,  the  salaries,  privileges 
and immunities for staff are not considered justified for most new ERIs. On another side, Community 
legal forms such as EEIG, EGTC, ECS or EP are not fully appropriate, either because their objectives 
are out of the scope of Research Infrastructures or because they exhibit specific limitations. Although 
national  forms  were  used  in  a  few  cases,  they  remain  specific  to  each  country  and  this  remains  a 
serious  obstacle  to  the  participation  of  other  countries.  Existing  legal  forms  are  therefore  not  100% 
tailored  to  the  specificities  of  today  European  research  infrastructures  and  this  has  been  the  main 
conclusions  of  the  work  carried  out  by  ESFRI  and  the  European  Commission  during  the  last  two 
years. In addition, in not acting in this area, the Community would not be playing its natural role to 
help Member States to catalyse and leverage their actions in the field of research infrastructures. 

Possible  implications:  Under  this  option  the  development  of  new  Research  Infrastructures  of 
European interest is likely to remain a very slow, case by case, process. The European Research Area 
is likely to remain fragmented and it will remain difficult to follow its evolution since the Community 
will not be a major actor.  

Option 2: Coordination action at EU level 

Option 2 corresponds to a "light" form of intervention from the European Commission, helping those 
involved in building ERIs to identify problems and needs, exchange information about how to tackle 
these problems, establish best practices, etc. The Commission, in particular, already ensures that the 
results  of  the  work  carried  out  on  legal  issues  within  the  EC  funded  "Preparatory  phase  for  the 
projects  in  the  ESFRI  Roadmap"  are  disseminated  as  widely  as  possible.  This  information  could  be 
further  compiled  into  practical  guidelines  comprising  a  compendium  of  possible  legal  forms 
identifying their main strengths and weaknesses. As explained in the conclusion for Option 1, existing 
legal  forms  have  inherent  limitations  as  regards  their  utilisation  for  ERIs.  Although  collecting 
information  about  these  legal  forms  will  not  remove  these  limitations,  this  could  help  consortia  to 
converge more quickly to the most appropriate legal form. 

Possible  implications:  Under  this  option  stakeholders  are  able  to  identify  more  quickly  the  most 
appropriate  legal  forms  but  the  development  of  new  ERIs  will  remain  highly  specific  to  a  given 
country or project. The coordination of the different funding sources at EU level will be eased but the 
image of ERA will remain weak.  

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Option 3: Development of Joint Undertakings 

Option  3  corresponds  to  the  development  of  Joint  Undertakings  by  the  Community,  according  to 
Article 171 of the EC-Treaty, on case by case basis, every time that a need for such setting-up occurs. 
The statutes of a Joint Undertaking are not pre-defined and, therefore, this leaves a lot of freedom to 
the founding members  

However,  the  development  of  Joint  Undertakings  requires  a  very  strong  Community  involvement 
resulting  in  the  European  Commission  becoming  a  member  and  main  financial  contributor.  This 
results in the creation of "Community bodies" with the corresponding characteristics and constraints 
(application  of  Staff  Regulation,  Protocol  on  Immunities  and  Financial  Regulation  of  the  European 
Communities).  

Possible  implications:  Considering  the  present  situation  in  Europe  where  Member  States  wish  to 
continue to play a central role in the development and financing of research infrastructures it is clear 
that  creation  of  Joint  Undertakings  for  the  new  ERIs  could  be  only  considered  in  exceptional 
circumstances. 

Option 4: Development of a dedicated legal framework at Community level 

Option  4  proposes  adopting  a  framework  Regulation  on  the  basis  of  Article  171  of  the  EC  Treaty 
which contains empowerment of the Commission to set up, by decision, each individual ERI.  

The  membership  of  an  ERI  would  be  open  to  Member  States,  third  countries  and  international 
organisations with the possibility of participating countries to mandate public or private entities with a 
public-service mission to exercise their rights and duties on their behalf. The Member States will be 
the key actors in the setting up of the new entities and will be their primary financers. The Community 
only intends to have a catalytic role. As such, the proposed approach will be completely different from 
the  one  related  to  the  JTIs  (where  the  Commission  is  a  key  member  and  financier)  and  the  newly 
created entities will never be considered "Community bodies" as under option 3.  

The Regulation will include only the minimum elements to provide the essential features that a legal 
form  for  research  infrastructures  ideally  should  have  i.e.  a)  to  provide  a  legal  personality  which  is 
recognised in all Member States and b) to provide those privileges and exemptions which are allowed 
at a national level to international research organisations. The flexibility needed to adapt to the need of 
a specific infrastructure will be provided by the statutes which are not pre-defined by the Regulation 
and would have to be developed by each consortium according to their specific requirements. 

The advantages of this option are in its "fit-for-purpose" character, and a better time efficiency of the 
overall  process,  needed  for  the  timely  setting-up  of  new  ERIs.  In  parallel,  as  under  option  2,  the 
Commission will continue its coordinating role through the support of the "Preparatory phase for the 
projects in the ESFRI Roadmap". 

Possible  implications:  The  development  of  ERIs  will  be  boosted by  the  initiative  of  the  Commission 
filling the existing gap at EU level. This will allow the Member and Associated States together with the 
European  Commission  to  steer  the  cost-effective  development  of  many  flagship  projects  of  pan-
European relevance, and in support of the Lisbon objectives. The Community will be seen as play a 
leading role in the setting-up of these consortia. The image of ERA will be strengthened.  

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Summary assessment of the four policy options 

The  following  table  compares  the  impact  of  each  policy  option  on  the  policy  objectives.  It  clear 
identifies option 4 as the most effective and efficient to achieve the policy objectives of the proposal. 

Policy objectives 

Option 1 

Option 2 

Option 3 

Option 4 

Ease and speed-up the process of 
setting-up new European research 
infrastructures 

Increase the number of European 
research infrastructures  
across ERA 

Contribute to the further development 
of a European policy for research 
infrastructures 

Provide a cost efficient procedure for 
setting-up new European research 
infrastructures 

Provide all the features that a legal 
form should have for European 
research infrastructures  

Increase of the positive image of the 
EU at international level through the 
reinforcement of ERA 

Generally 
Low 

Generally 
Low 

Moderate 

High 

Very Low 

Moderate 

Moderate 

High 

Very Low 

Moderate 

Moderate 

High 

Generally 
Low 

Generally 
Low 

Low 

High 

Depends on 
scheme 

Depends on 
scheme 

Moderate  

High 

Very Low 

Moderate 

Moderate 

High 

Contribute to achievement of socio-
economic, environmental and societal 
impacts 

Generally 
Low 

Moderate 

Moderate 

High 

EN 

37 

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7. 

MONITORING AND EVALUATION 

A  monitoring  and  evaluation  system  will  be  put  in  place  to  monitor  the  European  research 
infrastructures that are set up, and to assess the extent to which the new legal framework has met its 
objectives. 

7.1. 

Continuous monitoring 

The  European  Commission  will  ensure  the  overall  coordination  of  this  initiative.  A  regulatory 
Committee will support the European Commission in the management of the new legal framework. 

In addition, whenever they are officially approved, each ERI will be asked to provide annual reports 
and to send them to the European Commission and the financing Member States. These reports will 
provide an overview of activities for the year in the question, as well as detail of budgetary issues, and 
should  allow  the  European  Commission  and  Member  States  to  verify  that  the  infrastructure  is  still 
complying with the conditions necessary for the European status. 

It should be noted that this would not necessitate much more resources than those used presently to 
follow the preparatory phase of the new research infrastructures projects under FP7. 

7.2. 

Evaluation 

Five  years  after  the  adoption  of  the  legal  framework,  an  evaluation  will  be  carried  by  a  panel  of 
experts reporting to the Member States and the European Commission in order to assess: 

•  The take-up of the legal framework (i.e. number of new or upgraded European infrastructures using 

the framework); 

•  To what extent it has managed to deliver its anticipated benefits, and, in particular, its ease of use, 

and how far it has helped to speed up the creation of European research infrastructures; 

•  The need to review or adapt the legal framework. 

EN 

38 

   EN 

 
1. 

2. 

3. 

4. 

5. 

6. 

7. 

8. 

Glossary 

Annexes 

List of ESFRI projects: future potential of ERIs 

List of existing intergovernmental research organisations 

The ESFRI roadmap for Research Infrastructures 

Report of the Workshop on Legal forms of European research infrastructures (March 2006) 

Summary  of  the  Workshop  on  the  most  appropriate  legal  instruments  for  ERIs  
(Dec 2006) 

Report  of  the  Feasibility  study  on  the  creation  of  a  legal  instrument  for  ERIs  
(June 2007) 

Report of the ERA Expert Group: Developing World-Class Research Infrastructures for the 
European Research Area (February 2007) 

EN 

39 

   EN 

Annex 1 

Glossary 

AISBL 

Artemis 

BBMRI 

CCD 

CERN 

EC 

Association Internationale Sans But Lucratif 

Embedded Computing Systems - Joint Technology Initiative 

Biobanking and Biomolecular Resources Research Infrastructure 

Charge-Coupled Device 

European Organisation for Nuclear Research 

European Commission / European Community 

CLEAN SKY  Aeronautics and Air Transport - Joint Technology Initiative 

ECRI 

ECS 

EEIG 

EGTC 

EMBL 

European Conference on Research Infrastructures 

European Cooperative Society 

European Economic Interest Grouping 

European Grouping of Territorial Cooperation 

European Molecular Biology Laboratory 

ENIAC 

Nanoelectronics 2020 Initiative - Joint Technology Initiative 

ERA 

ERI 

ESA 

European Research Area 

European Research Infrastructure (legal instrument) 

European Space Agency 

ESFRI 

European Strategy Forum for Research Infrastructures 

ESO 

ESRF 

GDP 

European Org. for Astronomical Research in the Southern Hemisphere 

European Synchrotron Radiation Facility 

Gross Domestic Product 

GEOSS 

Global Earth Observation System of Systems 

IAC  

ILL 

IMI 

ITER 

JTI 

JRC 

R&D 

RPO 

Canaries Astrophysical Institute 

Institut Laue-Langevin 

Innovative Medicines Initiative - Joint Technology Initiative 

International Thermonuclear Energy Reactor 

Joint Technology Initiative 

Joint Research Centre 

Research and Development 

Research Performing Organisation 

SET plan 

Strategic Energy Technology plan 

VAT 

Value Added Tax 

EN 

40 

   EN 

Annex 2 

List of ESFRI projects: future potential ERIs 

Areas 

Acronym 

Project name 

Countries participating 

CESSDA 

Council of European Social Science Data Archives 

AT, CH, CZ, DE, DK, ES, FI, FR, GR, HU, IT, NL, NO, RO, SE, SI, UK 

CLARIN 

Common Language Resources Initiative 

AT, BG, CZ, DE, DK, EE, ES, FI, FR, GR, HU, HR, MT, NL, NO, PL, PT, 
RO, SE, UK 

Social Sciences 
and Humanities 

DARIAH  

Research Infrastructure for the Arts and Humanities 

CY, DE, DK, FR, GR, HR, IE, NL, SI, UK 

ESS Survey 

European Social Survey 

BE, BG, CH, DE, ES, ESF(INO), FR, IS, NL, NO, SE, SI, UK 

SHARE 

Survey of Health, Ageing and Retirement In Europe  

AT, BE, CH, CZ, DE, DK, ES, FR, GR, IE, IL, IT, NL, PL, SE, SI, UK 

A. BOREALIS 

European Polar Research Icebreaker 

BE, BG, DE, FI, FR, IT, NL, NO, RO, RU  

EMSO 

EUFAR 

European Multidisciplinary Seafloor Observation 

DE, ES, FR, GR, IE, IT, NL, NO, PT, SE, TR, UK 

European Fleet of Airborne Research 

DE, ES, FI, FR, GR, IT, PL, PT, UK 

Environmental 
Sciences 

EURO ARGO 

Global Ocean Observing Infrastructure 

BG, DE, ES, FR, GR, IE, IT, NL, NO, PL, PT, UK 

IAGOS 

ICOS 

In-Service Aircraft for a Global Observing System 

DE, FR, UK 

Integrated Carbon Observation System 

BE, CZ, DK, ES, FI, FR, DE, IT, NL, SE, UK 

LIFE WATCH 

Infrastructures Network for Research in Biodiversity 

BE, ES, DE, DK, FI, FR, IT, NL, NO, PL, RO, SE, SI, SK, UK 

Energy 

HIPER 

High Power Experimental Research Facility 

CZ, DE, ES, FR, GR, IT, PL, PT, RU, UK, US 

Biological and  
Life sciences 

EATRIS 

ECRIN 

ELIXIR 

European Research Infrastructure for Medecine 

DE, DK, FI, FR, IT, NL, NO, SE, UK 

Infrastructure for Clinical Trials and Biotherapy  

AT, BE, CH, DE, DK, ES, FI, FR, HU, IE, IT, SE, UK 

Upgrade of European Bio-Informatics Infrastructure 

AT, BE, CH, DE, ES, FI, FR, DE, GR, HR, IS, IE, IL, IT, NL, NO, PT, SE, 
UK 

INFRAFRONTIER 

Infrastructure for Phenome - and Archivefrontier 

DE, DK, ES, FI, FR, GR, IT, PT, SE, UK 

INSTRUCT 

Integrated Structural Biology Infrastructure 

AT, BE, CH, DE, ES, FI, FR, DE, GR, HR, IS, IE, IL, IT, NL, NO, PT, SE, 
UK 

BBMRI 

Bio-Banking and Biomolecular Resources 

AT, DE, EE, ES, FI, FR, HU, IE, IS, IT, MT, NL, NO, RO, SE, UK 

ELI 

Extreme Light Infrastructure 

BG, CZ, DE, ES, FR, GR, HU, IT, LT, PL, PT, RO, UK 

ESRF Upgrade 

European Synchroton Radiation Facility 

AT, BE, CH, CZ, DE, DK, ES FI, FR, HU, IS, IT, NL, NO, PL, PT, SE, UK 

ESS 

European Spallation Source 

CH, DE, ES, FR, HU, IT, LV, SE, UK 

Material Sciences 

European XFEL 

X-Ray Free Electron Laser 

CH, DK, FR, ES, HU, IT, PL, RU, SE, SK, UK 

ILL Upgrade 

Institute Laue Langevin 

AT, BE, CH, CZ, ES, FR, DE, HU, IT, PL, UK, SE 

IRUVX-FEL 

Infrared to UV & Soft X-Rays Free Electron Lasers 

DE, IT, SE, UK 

PRINS 

ELT 

FAIR 

Research Infrastructures for Nano-Structures 

BE, DE, FR, NL 

European Extremely Large Telescope 

BE, CH, DE, DK, ES, FI, FR, IT, NL, PT, SE, UK 

Facility for Antioproton and Ion Research 

AT, DE, ES, FI, FR, IN, IT, PL, RO, RU, SE, UK 

ILC-HiGrade 

International Linear Collider 

AT, BE, BG, CH, CZ, DE, DK, EL, ES, FI, FR, HU, IT, NL, NO, PL, PT, SK, 
SE, UK 

KM3NET 

Cubic Kilometre Neutrino Telescope 

CY, DE, ES, FR, GR, IE, IT, NL, RO, UK 

SKA 

The Square Kilometre Array 

AU, CA, DE, ES, FR, IT, NL, UK, US, ZA 

SLHC-PP 

Large Hadron Collider Upgrade 

AT, BE, BG, CH, CZ, DE, DK, EL, ES, FI, FR, HU, IT, NL, NO, PL, PT, SK, 
SE, UK 

SPIRAL 2 

Système De Production d’Ions Radioactifs en Ligne 

BE, BG, CZ, DE, ES, FR, HU, IL, IT, NL, PL, RO, UK 

EU-HPC 

European High-Performance Computing Service 

AT, CH, DE, FI, FR, ES, GR, IT, NL, NO, PL, PT, SE, UK 

41 

   EN 

Astronomy, 
Astrophysics, 
Nuclear Physics 
and Particle 
Physics 

Computer and 
Data Treatment 

EN 

Annex 3 

List of existing European Intergovernmental Research Organisations 

European 
Intergovernmental 
Research Organisations 

CERN - European 
Organisation for Nuclear 
Research 

ESO - European 
Organisation for 
Astronomical Research in 
the Southern Hemisphere  

ILL - Institut Laue-
Langevin 

EMBL - European 
Molecular Biology 
Laboratory  

ESA - European Space 
Agency  

Participating countries 

Founding texts 

Legal form 

Austria, Belgium, Bulgaria, 
Czech Republic, Denmark, 
Finland, France, Germany, 
Greece, Hungary, Italy, the 
Netherlands, Norway, Poland, 
Portugal, Slovak Republic, 
Spain, Sweden, Switzerland, 
United Kingdom 

Belgium, Denmark, Finland, 
France, Germany, Italy, 
Netherlands, Portugal, Spain, 
Sweden, Switzerland, United 
Kingdom 

Austria, Belgium, Czech 
Republic, France, Germany, 
Hungary, Italy, Poland, United 
Kingdom, Spain, Sweden, 
Switzerland 

Austria, Belgium, Croatia, 
Denmark, Finland, France, 
Germany, Greece, Iceland, 
Ireland, Israel, Italy, 
Netherlands, Norway, Portugal, 
Spain, Sweden, Switzerland, 
United Kingdom 

Austria, Belgium, Denmark, 
Germany, France, Ireland, Italy, 
Netherlands, Norway, Spain, 
Sweden, Switzerland, United 
Kingdom  

Intergovernmental 
Convention (1954) 

Intergovernmental 
Organisations 

Intergovernmental 
Convention (1962) 

Intergovernmental 
Organisations 

Intergovernmental 
Convention (1967) 

Company (société 
civile) under French 
law 

Intergovernmental 
Convention (1969) 

Intergovernmental 
Organisations 

Intergovernmental 
Convention (1975) 

Intergovernmental 
Organisations 

IAC - Canaries 
Astrophysical Institute 

Denmark, France, Germany, 
Spain, Sweden, United 
Kingdom 

Intergovernmental 
Convention (1979) 

Consorcio Público  

ESRF - European 
Synchrotron Radiation 
Facility  

Austria, Belgium, Czech 
Republic, Denmark, Finland, 
France, Germany, Hungary, 
Israel, Italy, the Netherlands, 
Norway, Poland, Portugal, 
Spain, Sweden, Switzerland, 
United Kingdom 

Intergovernmental 
Convention (1988) 

Company (société 
civile) under French 
law 

EN 

42 

   EN 

 
 
 
Annex 4 The ESFRI roadmap for Research Infrastructures: 

Annex 4 to 8 

ftp://ftp.cordis.europa.eu/pub/esfri/docs/esfri-roadmap-report-26092006_en.pdf 

Annex 5 Report of the Workshop on Legal forms of European research infrastructures (March 2006): 

ftp://ftp.cordis.europa.eu/pub/esfri/docs/march-2006_en.pdf  

Annex 6 Summary of the Workshop on the most appropriate legal instruments for ERIs (Dec 2006): 

ftp://ftp.cordis.europa.eu/pub/esfri/docs/conclusions_2nd_legal_workshop_141206.pdf  

Annex 7 Report of the Feasibility study on the creation of a legal instrument for ERIs (June 2007): 

ftp://ftp.cordis.europa.eu/pub/esfri/docs/recommendation-specific-expert-group-2006_en.pdf  

Annex 8 Report of the ERA Expert Group: Developing World-Class Research Infrastructures for the 

European Research Area (February 2007) 

http://ec.europa.eu/research/infrastructures/pdf/ri_era-expert-group-0308_en.pdf  

EN 

43 

   EN