Source: EURLEX
Language: en
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# 52014DC0460

**REPORT FROM THE COMMISSION TO THE EUROPEAN PARLIAMENT AND THE COUNCIL on the Application of Council Regulation (EC) No 723/2009 of 25 June 2009 on the Community legal framework for a European Research Infrastructure Consortium (ERIC) /\* COM/2014/0460 final \*/**

  

1.           Introduction

Council Regulation (EC) No 723/2009 on the
Community legal framework for a European Research Infrastructure Consortium[1]
(hereinafter referred to as “the ERIC Regulation”) was adopted in order to
facilitate the establishment and the operation of large European research
infrastructures among several Member States and associated countries by
providing a new legal instrument, the European Research Infrastructure
Consortium (ERIC).

The ERIC Regulation addressed one of the major
difficulties that was identified for the establishment of new European research
infrastructures, apart from scarcity of resources and the complexity of
technical and organisational issues, i.e. the lack of an adequate legal
framework agreed by all countries allowing the creation of appropriate
partnership with partners from different countries.

The ERIC Regulation was also to facilitate the
quicker establishment of European research infrastructures by saving time in
avoiding the repetition of negotiations, project by project, to analyse and
discuss the best legal form for such international research organisations, with
related advantages and disadvantages and the time saved in avoiding discussions
in each national parliament related to the approval of a needed international
agreement in case the framework provided for under the ERIC Regulation would
not have existed.

The ERIC Regulation was to respond to the
European political ambition of creating the European Research Area to enable
tackling current challenges (e.g. internationalisation of research; achievement
of critical mass; development of distributed facilities; development of
reference models). It also was to contribute to building an EU identity around
flagship scientific facilities leading to the increase of the positive image of
the European Union at international level by providing the international
counterparts with a single legal entity to which they could become member or to
which cooperation and possible partnerships could be agreed.

The ERIC Regulation was amended in December
2013[2] to
allow better reflection of the contributions of associated countries in the
ERIC by putting those countries at a more equivalent level as Member States in
the governing bodies of the ERIC in terms of voting rights in the light of the
possible hosting of ERICs in associated countries which would lead to an
increased participation of associated countries in ERICs. These requests were
also made against the background of the possible hosting by Norway of three ERICs that are included in the 2010 ESFRI Roadmap[3].

This report has been drawn up by the Commission
pursuant to Article 19 of the ERIC Regulation which provides that the
Commission will submit not later than 27 July 2014 a report to the European
Parliament and Council on its application and proposals for amendments where
appropriate.

2.           Legal Characteristics of
the ERIC

The ERIC Regulation provides a common legal
framework based on Article 187 of the Treaty on the Functioning of the European
Union (TFEU) complementing national and intergovernmental legal and regulatory
schemes for establishing transnational Research Infrastructures. It represents
one of the legal instrument that has been adopted until now in support of the
European Research Area.

According to the ERIC Regulation, an ERIC is a
legal entity with legal personality and full legal capacity recognised in all
Member States. It requires membership of at least three states: one Member State and two other countries that are either Member States or associated countries.
Its members may be Member States, associated countries, third countries other
than associated countries and intergovernmental organisations. They jointly
contribute to the achievement of the objectives of an ERIC, primarily the
establishment and operation of a research infrastructure of European
importance. Member States, associated countries, third countries other than
associated countries and intergovernmental organisations may also be observers
without voting rights.

The ERIC internal structure is flexible, allowing
the members to define, in the Statutes, their rights and obligations, the
bodies and their competences and other internal arrangements. The ERIC
Regulation provides for Member States and associated countries to hold jointly
the majority of voting rights in the assembly of members, although proposals
for amending the Statutes of an ERIC hosted by a Member State require the
agreement of a majority of the Member States that are members. The liability of
the members for the debts of an ERIC may be limited to their respective
contributions; flexibility will however be allowed in the statutes to modify
such arrangements. The applicable law is Union law, the law of the State of the
statutory seat or of the State of operation regarding certain administrative,
safety and technical matters. The Statutes and their implementing rules must
comply with such applicable law.

An ERIC is considered as an international body
or organisation in the sense of the directives on value-added tax and excise
duties but to be exempted from VAT and excise duties it needs to be recognised
as such by their host Member State . Being also considered an international
organisation within the meaning of the directive on public procurement, an ERIC
can be exempted from procurement procedures and may instead adopt its own
procurement rules.

An ERIC is set up by a decision of the
Commission acting on the basis of implementing powers conferred by the Council.
The Commission acts upon an application submitted by those Member States, countries and intergovernmental organisations who wish to become founding
members of the ERIC. The procedure for the adoption of a Commission decision
includes an assessment by independent experts, in particular in the field of
the intended activities of the ERIC. The Commission also seeks the opinion of
the committee provided for under Article 20 of the ERIC Regulation (ERIC
Committee) which is composed of representatives of all Member States and associated countries.

3.           Implementation of the
ERIC Regulation

Since the adoption of the ERIC Regulation,
seven ERICs have been established. In March 2011 SHARE-ERIC (Survey of Health,
Aging and Retirement in Europe)[4]
was established, first hosted by the Netherlands and since 2014 by Germany,
with Austria, Belgium, the Czech Republic, Greece, Israel, Italy, Slovenia and
the Netherlands as members and Switzerland as observer. In February 2012, CLARIN
ERIC (Common Language Resources and Technology Infrastructure)[5] was
established, hosted by the Netherlands, with the Czech Republic, Denmark, Germany, Estonia and the Dutch Language Union as members. In November 2013, four ERICs were
established; EATRIS ERIC ((European Advanced Translational Research
Infrastructure in Medicine)[6]
hosted by the Netherlands with Czech Republic, Denmark, Estonia, Italy and
Finland as members and France and Spain as observers; ESS ERIC (European Social
Survey)[7]
hosted by the UK with Belgium, Czech Republic, Germany, Estonia, Ireland,
Lithuania, the Netherlands, Austria, Poland, Portugal, Slovenia, Sweden as
members and Norway and Switzerland as observers; BBMRI-ERIC (Biobanking and
Biomolecular Resources Research Infrastructure)[8]
hosted by Austria with Belgium, Czech Republic, Germany, Estonia, France,
Greece, Italy, Malta, Netherlands, Finland and Sweden as members and Norway,
Poland, Switzerland and Turkey observers; ECRIN-ERIC (European Clinical
Research Infrastructure Network)[9]
hosted by France with Germany, Spain, Italy and Portugal as members.

Finally, in May 2014, Euro-Argo ERIC[10] was
established hosted by France with Germany, Greece, Italy, the Netherlands, Finland and the UK as members and Poland and Norway as observers.

All seven ERICs mentioned above were included
in the Roadmaps agreed by the European Strategy Forum on Research
Infrastructures (ESFRI). Two ERICs (SHARE-ERIC and ESS ERIC) have been
established for the design, development and implementation of European surveys.
The five other ERICs have been established for the development and
implementation of distributed infrastructures in the area of biological and
medical sciences, environmental sciences and social sciences and humanities.

The ERIC legal structure is used to establish
and operate different types of infrastructures, either single-sited or
distributed. Distributed infrastructures may range between infrastructures
having facilities located in different sites, operated by a single legal
entity, and infrastructures set up as a central hub coordinating the operation
of distributed facilities which may retain their legal personality.

The ERIC Regulation is directly applicable in
Member States and requires no transposition. However, it was necessary for
Member States to adopt the appropriate measures and procedures for being able
to host or for becoming a member of an ERIC. The setting up of an ERIC under
the ERIC Regulation requires, amongst other, a declaration by the host Member State recognising the ERIC as an international body in the sense of the VAT
Directive and as an international organisation in the sense of Directive
2008/118/EC, in order for VAT and/or excise duty exemption to apply. This took
for most of the Member States several years with the exception of the Netherlands that had internal procedures in place already in 2010 to enable the hosting of
an ERIC. The reason for this was the fact that the new legal structure had to
be assimilated in the national regulatory and administrative systems and that
many practical questions had to be addressed both by the Commission services as
well as the involved Member States before the ERICs could be established and
become operational under the national regulatory and administrative systems.

As regards associated countries or third
countries to which the ERIC Regulation is not directly applicable, they need to
submit a binding declaration recognising the legal personality and the
privileges of an ERIC for possibly hosting (in the case of associated
countries) or becoming a member of a specific ERIC.

Five years after the adoption of the ERIC
Regulation most Member States and some associated countries have taken measures
necessary to be in the position to host or become member of an ERIC. This
positive development can also be illustrated by the fact that approximately 20
out of the 48 projects included in the 2010 ESFRI Roadmap are using or planning
to use the ERIC for establishing the research infrastructure. Moreover, two
ERIC applications have been received by the Commission for establishing
European research infrastructures that are not included the ESFRI Roadmap: the
Central European Research Infrastructure Consortium (CERIC-ERIC) to be hosted
by Italy and the Joint Institute for Very Long Baseline Interferometry
(JIV-ERIC) to be hosted by the Netherlands.

The administrative and procedural measures
taken by the competent authorities of the Member States and associated
countries, the information exchanged at the regular meetings of the ERIC
Committee and the clarifications provided by the various Commission services to
questions raised by Member States and associated countries representatives have
played an important role in contributing to the facilitation of the
implementation of the ERIC Regulation.

The Commission expects that around 15 ERICs
will be established by the end of 2015.

4.           Challenges for the
implemention of the ERIC Regulation

The ERIC Regulation was adopted and is being
implemented at a time when restrictive budgetary measures are taken by Member
States and associated countries in order to reduce public deficits. The pooling
of resources on a long-term basis necessary for establishment and operation of
a proper pan-European Research Infrastructure is therefore a big challenge and
becomes even more complicated because of the different time frames for
budgetary decision procedures of individual Member States and associated countries
involved. This leads to a rather long preparation time to achieve the minimum
funding basis for establishing Research Infrastructures. This issue is not
specific to the ERIC instrument but relates to all European research
infrastructures. Better synchronisation, more transparency and alignment
between Member States, associated countries and third countries involved in the
preparation for the implementation of the research infrastructure would help
greatly to speed up the implementation process.

The condition that only States and
Intergovernmental Organisations can apply for setting up an ERIC adds
complexity for the scientific communities that are preparing for the
establishment and implementation of the research infrastructure as Ministries
or funding Agencies mandated by Ministries are usually not involved from the
very beginning of the preparation of the ERIC applications. It also triggers
discussions between the prospective partners of an ERIC for example on the
relation between contributions and voting rights that are not addressed in the
same way by the scientific communities involved. The involvement of ministry
and funding agencies representatives from the very beginning of the preparation
for the establishment of European Research Infrastructures could help avoiding
unnecessary delays at later stages of the preparation phase when siting,
financial contributions and commitments from the partners would need to be
secured before a formal ERIC application could be made.

In addition, the cross-cutting character of
many European research infrastructures leads in several instances to a more
complex decision making process within the partners of these infrastructures as
several ministries and funding agencies have to be involved for example in the
areas of Health, Research, Marine, Environment and Energy matters.

The provisions related to VAT and excise duties
and to Procurement as laid down in the ERIC Regulation meant that within Member
States, associated countries and third countries involved, several ministries
including finance and foreign affairs had to be included in the preparation and
approval of the ERIC applications which added some additional complexity and
required appropriate internal procedures to be set up for facilitating the
approval process. It appears from the experience gained with the establishment
of the seven ERICs that more Member States and associated countries are
becoming aware of this complexity and have adopted internal decision making
procedures to organise and speed up the internal approval process.

Finally, ERICs will for the first time be
eligible for submitting and participating in proposals for calls under Horizon
2020. Also in the Research Infrastructure Work Programme, references have been
made to possible support to ERICs and ESFRI research infrastructures. The
Commission expect that they could play an important role in data management and
in clusters around some thematic areas like health and environment research.

5.           Role of the Commission
services

The Commission services have facilitated the
process of implementation of the ERIC Regulation by organising and chairing the
ERIC Committee meetings that take place three to four times a year. Apart from
providing an opinion on the formal ERIC applications in compliance with the
ERIC Regulation, these meetings serve to provide and exchange information on
ongoing ERIC applications and on the internal measures Member States and associated countries have put in place with respect to the decision making for ERIC
membership. In addition, presentations by representatives of future European
research infrastructures that are close to start preparing their ERIC
applications are given so that all Member States and associated countries are
informed about timescales, scale of funding to be expected, services and other
activities to be developed and opportunities for participation in the
preparation and application of the ERIC.

The Commission published practical guidelines
in 2010 that give practical information for potential applicants on how to
submit an application for an ERIC and commentaries on the articles of the ERIC
Regulation focussing on legal aspects. An updated version of these Guidelines
that takes into account the experience gained so far will be published in 2014.

The Commission services have provided
clarifications to a wide range of questions concerning the provisions of the
ERIC Regulation that were raised by Member States, associated countries and
representatives of research infrastructures that were preparing for an ERIC application.
These concerned inter alia, the legal character of the ERIC, whether the ERIC
could have as main goal to undertake nuclear research, the liability of the
members, applicable law in particular for distributed infrastructures with
nodes and personnel in various countries, the liquidation of an ERIC and the
role of the national court.

The Commission services provided in 2013
templates necessary for the declaration of recognition of an ERIC by third
countries and intergovernmental organisations that clarified and simplified the
process for those countries to host or become members of an ERIC.

The Commission services also provided in 2013 a
working document containing templates for the provisions of an ERIC based on
the experience gained in the application process of the first ERICs in order to
facilitate the drafting of the provisions by the applicants and achieving a
more coherent set of provisions for the ERICs without prejudice to the
flexibility and adaptation necessary for reflecting the diverse character of
the various ERICs in terms of structure (single sited, distributed, virtual)
and in terms of areas of research (social sciences and humanities,
environmental sciences, energy, biological and medical sciences, materials and
analytical facilities, physical sciences and engineering).

The Commission services played an active role
during the preparation of ERIC applications by participating in board meetings
and other preparatory meetings of Member States and associated countries
clarifying and identifying possible solutions and compromises for points that
were raised in discussions between the future partners.

After the establishment of an ERIC, the
Commission services have a limited role in the ERIC activities which are
governed and steered by the ERIC members within the boundary conditions of the
ERIC Regulation, the Statutes and Implementing Rules adopted for the ERIC. The
Commission services can only act if informed or requested by the members of
issues that have arisen and on the basis of the annual reporting by the ERIC to
the Commission that is provided for in the ERIC Regulation.

In view of the establishment of seven ERICs
having statutory seats in five different Member States and in order to
facilitate the further development of the ERIC, the Commission is organising
ERIC network meetings in which the existing ERICs can exchange best practices
and raise common issues. Representatives of the ERIC Committee and of
prospective ERICs that are in the final process of the ERIC application are invited
to these meetings. A first ERIC network meeting was held in June 2014.

6.           Conclusions

With the successful establishment of seven
ERICs by May 2014 and the perspective of having some 15 ERICs in place by the
end of 2015, it can be concluded that the take-up of the legal framework i.e.
number of new or upgraded European infrastructures using the ERIC has gained
momentum and is successful. The ERIC Regulation has proven that it indeed
filled in the gap between traditional treaty-based international organisations
and national legal entities for establishing pan-European research
infrastructures. This can also be demonstrated by the envisaged utilisation of
the ERIC by some twenty projects that are included in the ESFRI Roadmap for
implementing the research infrastructure.

Due to many commonalities in the provisions
concerning accession, decision making and the handling of questions such as
liability, the ERIC has facilitated greatly the opportunities for Member
States, associated countries and third countries to consider cooperation or
joining these European Research Infrastructures. The Commission services have
facilitated the process of implementation of the ERIC Regulation by organising
and chairing the ERIC Committee meetings that take place.

The procedure for application for an ERIC and
ease of use is still to be further optimised as Member States, the scientific
community and the Commission services go through a learning period for
understanding better the practical implications of using this new legal instrument.
It can be expected that, if appropriate measures are taken within the
Commission services, the Member States and associated countries, the ease of
use will steadily improve because of the experience gained and that the process
could be further streamlined and to speed up the creation of European research
infrastructures. Therefore, the Commission does not propose any recommendation
for amendments at this stage.

7.           Pending issues and next
steps

As the result of the experience gained in the
application processes for creating an ERIC, several new subjects will have to
be addressed by the members of the ERICs and by the Commission services. They
relate to the practices in the various Member States for example on how to
register an ERIC under the national legal system through the Chamber of
Commerce, or other registers which would enable an ERIC to open bank accounts
and to apply for reimbursement for VAT and excise duties. Similarly, as an ERIC
is a public-public partnership, in many instances the status of personnel that
it employs needs to be clarified as it will impact on salary scales, income tax
issues and personnel costs.

There are also questions to clarify as concerns
in-kind contributions to the ERIC by its members, in particular as to whether these
contributions could benefit from the VAT and excise duty exemption and, if so,
under which conditions. This is relevant as in many cases members of an ERIC
prefer to partly contribute in-kind to the ERIC instead of providing
cash-contributions.

The question of economic-versus non-economic
activities should be further clarified by the Commission services as there are
increasing demands for ‘innovative’ and ‘socio-economic’ impacts of the
activities of the research infrastructure justifying the investments to be made
by the members. This question should also be addressed in the context of the
‘smart specialisation’ as concerns possible support by regional funds and state
aid (for construction of parts of the facilities of an ERIC). It includes other
subjects such as in which way ERICs can develop spin-offs, technology transfers
and receive revenues from services that are developed while complying with the
requirement of having only limited economic activities and without putting into
danger their ERIC status.

ERICs play an important role in the
defragmentation of the European Research Area by creating in a harmonised and
structural way services for the scientific communities throughout the Union because of the transparency that is being introduced as concerning the collection of
data, access to data and instruments and maintenance of data and services for
users. This is not only to support scientific communities but can also lead to
evidence based policy making in areas as health, environment and social and
cultural policy. The Commission will explore with the Member States possible
ways of how ERICs could support other research infrastructures by providing
such services.

Although there are 20 Member States involved in
ERICs set-up so far, ERIC statutory seats are concentrated in a few Member
States. Due consideration should be given by Member States and associated
countries when preparing for the implementation of new European research
infrastructures to make an effort for achieving in the longer term a more
balanced representation throughout the European Union.

ERICs can play an important role for
international cooperation, e.g. with the African Union, Australia, Russia, US, Canada and with UN driven collaborations. It is in that respect noteworthy
that ERIC is actually considered within the framework of the OECD Global
Science Forum (GSF) as a possible model for establishing distributed
international research infrastructures. In particular, the question of
governance, legal personality and dispute settlement would need to be addressed
for such infrastructures. The Commission will where appropriate support the
efforts in the context of the GSF or other international for further exploring
the possibilities of agreeing an regulatory framework for international research
infrastructures that could like the ERIC did in the European Union fill in the
gap between the treaty based organisations and national organisations.

Finally, as noted before the ERIC Regulation
was amended in 2013 to accommodate requests from associated countries and in
particular Norway to allow for full recognition of their contributions in an
ERIC in terms of voting rights. The Commission will closely monitor whether the
amendment will result in an increased participation of associated countries as
host or member of ERICs.

[1]               OJ L 206, 8.8.2009, p. 1.

[2]               OJ L 326, 6.12.2013, p.1.

[3]               These are: the Consortium of European Social Science
Data Archives (CESSDA), the Svalbard Integrated Arctic Earth Observation System
(SIOS) and the European Carbon Dioxide Capture and Storage Laboratory
Infrastructure (ECCSEL)

[4]               OJ L 71, 18.3.2011, p. 20.

[5]               OJ L 64, 3.3.2012, p. 13.

[6]               OJ L 298, 8.11.2013, p. 38.

[7]               OJ L 320, 30.11.2013, p. 44.

[8]               OJ L 320, 30.11.2013, p. 63.

[9]               OJ L 324, 5.12.2013, p. 8.

[10]             OJ L 136, 9.06.2014, p. 35.

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