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# 52014PC0659

**Proposal for a COUNCIL DECISION on the conclusion of the Agreement for scientific and technological cooperation between the European Union and European Atomic Energy Community and the Swiss Confederation associating the Swiss Confederation to Horizon 2020 - the Framework Programme for Research and Innovation and the Research and Training Programme of the European Atomic Energy Community complementing Horizon 2020; and regulating Switzerland's participation in the ITER activities carried out by Fusion for Energy /\* COM/2014/0659 final - 2014/0304 (NLE) \*/**

  

EXPLANATORY MEMORANDUM

1.           CONTEXT OF THE PROPOSAL

On 15 November 2013 the Council authorised
the Commission to open negotiations, on behalf of the European Union and the
European Atomic Energy Community, with the Swiss Confederation in order to
conclude an Agreement between the European Union and European Atomic Energy
Community and the Swiss Confederation associating the Swiss Confederation to
Horizon 2020 - the Framework Programme for Research and Innovation and the
Research and Training Programme of the European Atomic Energy Community
complementing Horizon 2020; and regulating Switzerland's participation in the
ITER activities carried out by Fusion for Energy.

Negotiations were completed on 24 July
2014. The text of the Agreement is attached in annex.

The Commission proposes that the Council
decides on the conclusion of the Agreement on behalf of the European Union.

Conclusion of the Agreement on behalf of the
European Atomic Energy Community is subject to a separate proposal, pursuant to
the second paragraph of Article 101 of the Treaty establishing the EAEC.

The attached proposal is for a Council
decision on the conclusion of the Agreement on behalf of the European Union. The
Commission proposes that the Council:

–
concludes the Agreement on behalf of the
European Union.

2.           LEGAL ELEMENTS OF THE
PROPOSAL

The proposal for a Council decision is
based on Article 186, Article 218(6)(a), Article 218(7) and Article 218(8) of
the Treaty on the Functioning of the European Union.

2014/0304 (NLE)

Proposal for a

COUNCIL DECISION

on the conclusion of the Agreement for
scientific and technological cooperation between the European Union and
European Atomic Energy Community and the Swiss Confederation associating the
Swiss Confederation to Horizon 2020 - the Framework Programme for Research and
Innovation and the Research and Training Programme of the European Atomic
Energy Community complementing Horizon 2020; and regulating Switzerland's
participation in the ITER activities carried out by Fusion for Energy

THE COUNCIL OF THE EUROPEAN UNION,

Having regard to the Treaty on the
Functioning of the European Union, and in particular Article 186 in conjunction
with Article 218(6)(a), Article 218(7) and the first subparagraph of Article
218(8) thereof,

Having regard to the proposal from the
European Commission,

Having regard to the consent of the
European Parliament,

Whereas:

(1)       The Agreement for
scientific and technological cooperation between the European Union and
European Atomic Energy Community and the Swiss Confederation associating the
Swiss Confederation to Horizon 2020 - the Framework Programme for Research and
Innovation and the Research and Training Programme of the European Atomic
Energy Community complementing Horizon 2020; and regulating Switzerland's
participation in the ITER activities carried out by Fusion for Energy, was
signed on behalf of the European Union on [xx.xx.201x] in accordance with
Council Decision No [xxx] [1].

(2)       The Agreement was
concluded by the European Atomic Energy Community on [xx.xx.201x] in accordance
with Council Decision No [xxx][2].

(3)       The Agreement should be concluded
by the European Union.

HAS DECIDED AS FOLLOWS:

Article 1

The Agreement for scientific and
technological cooperation between the European Union and European Atomic Energy
Community and the Swiss Confederation associating the Swiss Confederation to
Horizon 2020 - the Framework Programme for Research and Innovation and the
Research and Training Programme of the European Atomic Energy Community
complementing Horizon 2020; and regulating Switzerland's participation in the
ITER activities carried out by Fusion for Energy is hereby concluded on behalf
of the European Union.

The text of the Agreement is attached to
this Decision.

Article 2

The
President of the Council shall designate the person empowered to make, on
behalf of the European Union, the notification of the entry into force of the Agreement provided for in Article
15(1) of the Agreement in order to express
the consent of the European Union to be bound by the Agreement.

Article 3

The Commission shall adopt the position of
the European Union to be taken in the Switzerland/Communities Research
Committee with regard to Committee’s decisions taken pursuant to Article 5(2)
of the Agreement.

Done at Brussels,

                                                                       For
the Council

                                                                       The
President

[1]               OJ L […], […], p. […].

[2]               OJ L […], […], p. […].

Agreement for
scientific and technological cooperation between the European Union and
European Atomic Energy Community and the Swiss Confederation associating the
Swiss Confederation to Horizon 2020 - the Framework Programme for Research and
Innovation and the Research and Training Programme of the European Atomic
Energy Community complementing Horizon 2020; and regulating the Swiss
Confederation’s participation in the ITER activities carried out by Fusion for
Energy

THE EUROPEAN UNION AND THE EUROPEAN ATOMIC ENERGY COMMUNITY,

(hereinafter
referred to respectively as ‘the Union’ and ‘Euratom’),

of the one part,

and

THE SWISS
CONFEDERATION,

(hereinafter
referred to as Switzerland),

of the other
part,

(hereinafter
referred to as the ‘Parties’),

CONSIDERING that
the close relationship between Switzerland and the Union and Euratom is of
benefit to the Parties;

CONSIDERING the
importance of scientific and technological research for the Union and Euratom
and for Switzerland and their mutual interest in cooperating in this matter in
order to make better use of resources and to avoid unnecessary duplication;

WHEREAS Switzerland and the Union and Euratom are currently implementing research programmes in fields of
common interest;

WHEREAS the Union
and Euratom and Switzerland have an interest in cooperating on these programmes
to their mutual benefit;

CONSIDERING the
interest of the Parties in encouraging the mutual access of their research
entities to research and technological development activities in Switzerland,
on the one hand, and to the Union Framework Programme for research and
innovation and to the Research and Training Programme of Euratom, and to the
activities carried
out by the European Joint Undertaking for ITER and the Development of Fusion
for Energy[1]
(hereafter ‘Fusion for Energy’), on the other;

WHEREAS the
European Atomic Energy Community and Switzerland concluded a Cooperation
Agreement in 1978 in the field of controlled thermonuclear fusion and plasma
physics (hereinafter referred to as ‘the Fusion Agreement’);

WHEREAS both
Parties wish to emphasize the mutual benefits of the execution of the Fusion
Agreement, in the case of the European Atomic Energy Community, the role of
Switzerland in the advancement of all the elements of the Fusion Community
Programme, in particular JET and ITER on the way to the Demonstration Reactor
DEMO, and, in the case of Switzerland, the development and strengthening of the
Swiss Programme and its integration in the European and international frames;

WHEREAS both
Parties reaffirm their desire to pursue their long-term cooperation in the
field of controlled thermonuclear fusion and plasma physics on the basis of a
new framework and instruments that will ensure the support to the research
activities;

WHEREAS this
Agreement terminates and replaces the Fusion Agreement;

WHEREAS the
Parties concluded a Framework Agreement on 8 January 1986 for scientific and
technical cooperation, which entered into force on 17 July 1987 (hereinafter
referred to as ‘the Framework Agreement’);

CONSIDERING that
Article 6 of the Framework Agreement states that the cooperation aimed at by
the Framework Agreement is to be carried out through appropriate agreements;

WHEREAS
on 25 June 2007 the Communities and Switzerland signed an agreement on
scientific and technological cooperation between the European Community and the
European Atomic Energy Community, of the one part, and the Swiss Confederation,
of the other part;

WHEREAS on 12
December 2012 Euratom and Switzerland concluded an agreement on Scientific and
Technological Cooperation between the European Atomic Energy Community, of the
one part, and the Swiss Confederation, of the other part, associating the Swiss
Confederation to the Framework Programme of the European Atomic Energy
Community for nuclear research and training activities (2012-2013);

CONSIDERING that
Articles 9(2) of the abovementioned Agreements provide for renewal of the
Agreement with a view to participation in new multi-annual Framework Programmes
for research and technological development or other current and future
activities, under mutually agreed conditions;

WHEREAS Euratom
concluded the Agreement on the establishment of the ITER International Fusion
Energy Organization for the Joint Implementation of the ITER project. Pursuant
to its Article 21 and the Agreements in the form of an Exchange of Letters
between the European Atomic Energy Community and the Swiss Confederation on the
application of the ITER Agreement, the Agreement on Privileges and Immunities
for ITER and the Broader Approach Agreement to the territory of Switzerland and
on Switzerland’s membership in the European Joint Undertaking for ITER and the
Development of Fusion Energy of 22 November 2007, the Agreement applies to
Switzerland participating in the Euratom fusion programme as a fully associated
third State;

WHEREAS Euratom
is a member of the European Joint Undertaking for ITER and the Development of
Fusion Energy established by the Council Decision of 27 March 2007. Pursuant to
Article 2 of this Decision and the Agreements in the form of an Exchange of
Letters between the European Atomic Energy Community and the Swiss
Confederation on the application of the ITER Agreement, the Agreement on
Privileges and Immunities for ITER and the Broader Approach Agreement to the
territory of Switzerland and on Switzerland’s membership in the European Joint
Undertaking for ITER and the Development of Fusion Energy of 28 November 2007
Switzerland became a member of the Joint Undertaking as a third State having
associated its research programme to the Euratom fusion programme;

WHEREAS Euratom
concluded the Agreement between the European Atomic Energy Community and the
Government of Japan for the Joint Implementation of the Broader Approach Activities
in the Field of Fusion Energy Research. Pursuant to its Article 26 the
Agreement applies to Switzerland participating in the Euratom fusion programme
as fully associated third State;

WHEREAS
the Union programme “Horizon 2020 - the Framework Programme for Research and
Innovation (2014-2020)” (hereinafter referred to as ‘Horizon 2020’) was adopted
by Regulation (EU) No 1291/2013[2]
of the European Parliament and of the Council, the Specific Programme
implementing Horizon 2020 was adopted by Council Decision No 743/2013[3], and the Research and
Training Programme of the European Atomic Energy Community (2014-2018)
complementing Horizon 2020 – (hereinafter referred to as ‘Euratom Programme’)
was adopted by Council Regulation (Euratom) No 1314/2013[4], and the Rules for the
participation and dissemination in Horizon 2020 and Euratom Programme were
adopted by the Regulation of the European Parliament and of the Council (EU) No
1290/2013[5],
and the Regulation (EC) No 294/2008 establishing the European Institute of Innovation
and Technology (hereinafter referred as the ‘EIT Regulation’) was amended by
Regulation (EU) No 1292/2013[6]
of the European Parliament and of the Council, and the decision to provide the
basis for the financing of the ITER related activities for the period 2014-2020
was adopted by Council Decision 2013/791/Euratom[7]
amending Decision 2007/198/Euratom establishing the European Joint Undertaking
for ITER and the Development of Fusion Energy and conferring advantages upon
it;

WHEREAS without
prejudice to the provisions of the Treaty on the Functioning of the European
Union and the Treaty establishing the European Atomic Energy Community, this
Agreement and any activities entered into under it will in no way affect the
powers vested in the Member States to undertake bilateral activities with
Switzerland in the fields of science, technology, research and development, and
to conclude, where appropriate, agreements to that end.

HAVE
AGREED AS FOLLOWS:

ARTICLE 1

Subject matter

1.
The
terms and conditions of Swiss participation in the implementation of
Pillar I of Horizon 2020 and actions under the specific objective ‘Spreading
excellence and widening participation’, the Euratom Programme 2014-2018 and in
the activities carried out by the European Joint Undertaking for ITER and the
Development of Fusion for Energy (hereafter ‘Fusion for Energy’) for 2014-2020,
shall be as laid down in this Agreement.

1bis.
Subject to Article 13(3) quater this Agreement shall set out as of 1
January 2017 the terms and conditions of Swiss participation in the
implementation of the whole of Horizon 2020, the
Euratom Programme 2014-2018 and in the activities carried out by the European
Joint Undertaking for ITER and the Development of Fusion for Energy for 2014-2020.

2.
Legal
entities established in Switzerland may participate in Programmes covered by
this Agreement and in the activities carried out by Fusion for Energy under the
conditions set out in Article 7.

3.
As
of 1 January 2017 legal entities established in Switzerland may participate in
the activities of the Joint Research Centre of the Union, as far as this
participation is not covered by paragraph 1.

4.
Legal
entities established in the Union, including the Joint Research Centre, may
participate in research programmes and/or projects in Switzerland on themes equivalent to those of the programmes mentioned in paragraph 1 and,
as of 1 January 2017, mentioned in paragraph 1 bis.

5.
For
the purposes of this Agreement:

a.
‘legal entity’ means any natural or any legal person created and recognised as
such under national law, Union law or international law, which has legal
personality and which may, acting in its own name, exercise rights and be
subject to obligations;

b.
‘Programmes covered by this Agreement’ means Pillar I of Horizon 2020, actions
under the specific objective ‘Spreading excellence and widening participation’ and
the Euratom Programme 2014-2018 or, subject to Article 13(3) quater, the
whole of Horizon 2020 and Euratom Programme 2014-2018 as of 1 January 2017;

c.
‘Pillar I of Horizon 2020’ means actions under specific objectives enumerated
in Annex I part I of the Regulation (EU)
No 1291/2013 of the European Parliament and of the Council, namely the European
Research Council, future and emerging technologies, Marie Skłodowska-Curie
actions and research infrastructures.

ARTICLE 2

Forms and means
of cooperation

1.       Cooperation
shall take the following forms:

a.  Participation
of legal entities established in Switzerland in Programmes covered by this
Agreement in accordance with the terms and conditions laid down in their rules
for the participation and dissemination; and in all
activities carried out by Fusion for Energy, in accordance with the terms and
conditions laid down by the Joint Undertaking.

     In
case the Union makes provisions for the implementation of Articles 185 and 187
of the Treaty on the Functioning of the European Union (TFEU)[8], Switzerland shall be allowed to participate in the legal structures created under these
provisions, in conformity with the decisions and regulations that have been or
will be adopted for the establishment of these legal structures. Subject
to Article 13(3) quater, this provision shall only apply as of 1
January 2017.

     Legal
entities established in Switzerland shall be eligible for participation, as
entities from an associated country, in indirect actions based on Articles 185
and 187 of the TFEU. Subject to Article 13(3) quater, this
provision shall only apply as of 1 January 2017.

     The
Regulation (EC) No 294/2008 of the European Parliament and of the Council as
amended by the Regulation (EU) No 1292/2013 of the European Parliament and of
the Council shall apply to participation of legal entities established in Switzerland in Knowledge and Innovation Communities.

     Swiss
participants are invited to the Stakeholder Forum of the European Institute of
Innovation and Technology (EIT).

b.  Financial
contribution by Switzerland to the budgets of the work programmes adopted for
the implementation of Programmes covered by this Agreement and to the
activities carried out by Fusion for Energy, as defined in Article 4(2).

c.  Participation
of legal entities established in the Union in Swiss research programmes and/or
projects decided by the Federal Council on themes equivalent to those of Programmes
covered by this Agreement and to those
activities carried out by Fusion for Energy, in accordance
with the terms and conditions laid down in the relevant Swiss regulations and
with the agreement of the partners in the specific project and the management
of the corresponding Swiss programme. Legal entities established in the Union
participating in Swiss research programmes and/or projects shall cover their
own costs, including their relative share of the project’s general management
and administrative costs.

2.       In
addition to timely provision of information and documentation concerning the
implementation of Programmes covered by this Agreement and of the activities
carried out by Fusion for Energy as well as of the Swiss programmes and/or
projects, the cooperation between the Parties may include the following forms
and means:

a. Regular
exchanges of views on research policy guidelines and priorities and plans in Switzerland and in the Union and Euratom;

b. Exchanges
of views on the prospects and development of cooperation;

c. Timely
exchanges of information on the implementation of the research programmes and
projects in Switzerland and in the Union and Euratom and on the results of the
work undertaken under this Agreement;

d. Joint
meetings and resulting joint declarations;

e. Visits
and exchanges of researchers, engineers and technicians;

f.          Regular
contacts and follow up between programme or project leaders in Switzerland and in the Union and Euratom;

g. Participation
by experts in seminars, symposia and workshops;

h. Timely exchanges
of information on the activities of ITER in a similar manner as that for Member
States.

ARTICLE 3

Intellectual
Property Rights and Obligations

1.
Subject
to Annex A and applicable law, legal entities established in Switzerland
participating in Programmes covered by this Agreement and activities carried
out by Fusion for Energy shall, as regards ownership, exploitation and
dissemination of information and intellectual property arising from such
participation, have the same rights and obligations as legal entities
established in the Union participating in the research programmes and
activities in question. This provision shall not apply to the results obtained
from projects started before the provisional application of this Agreement.

2.
Subject
to Annex A and applicable law, legal entities established in the Union taking
part in Swiss research programmes and/or projects, as provided for in Article 2(1c),
shall, as regards ownership, exploitation and dissemination of information and
intellectual property arising from such participation, have the same rights and
obligations as legal entities established in Switzerland participating in the
programmes and/or projects in question. This provision shall not apply to the
results obtained from projects started before the provisional application of
this Agreement.

3.
For
the purposes of this Agreement, ‘intellectual property’ shall have the meaning
defined in Article 2 of the Convention establishing the World Intellectual
Property Organisation, signed at Stockholm on 14 July 1967.

ARTICLE
4

Financial
provisions

1.       Switzerland's
financial contribution deriving from participation in the implementation of
Programmes covered by this Agreement and to the activities carried out by Fusion for Energy shall be established
in proportion to and in addition to the amount available each year in the
general budget of the European Union for commitment appropriations to meet the
Commission's financial obligations stemming from work to be carried out in the
forms necessary for the implementation, management, functioning and operations
of the programmes covered by this Agreement.

The
European Union reserves the right to use the operational and administrative
appropriations arising from the Swiss contribution for Programmes covered by
this Agreement and all activities carried out by Fusion for Energy according to
the needs of these programmes and activities.

2.       With
the exception of the second sentence of this paragraph, the proportionality
factor governing Switzerland’s financial contribution under this agreement
shall be obtained by establishing the ratio between Switzerland’s gross
domestic product at market prices and the sum of gross domestic products, at
market prices, of the Member States of the European Union. The proportionality
factor governing Switzerland’s contribution to Fusion for Energy activities and
the fusion part of Euratom Programme shall be obtained by establishing the
ratio between Switzerland’s gross domestic product at market prices and the sum
of gross domestic products, at market prices, of the Member States of the
European Union and Switzerland.

These
ratios shall be calculated on the basis of the latest statistical data from
Eurostat, available at the time of publication of the draft budget of the European
Union for the same year.

3.       The rules governing Switzerland's financial contribution are set out in Annex B.

ARTICLE 5

Switzerland/Communities
Research Committee

1.
The
Switzerland/Communities Research Committee set up in the Framework Agreement shall
review, evaluate and ensure the proper implementation of this Agreement. Any
issues arising from the implementation or interpretation of this Agreement
shall be referred to this Committee.

2.
The
Committee may decide to amend the references to Union acts in Annex C.

3.       The
Committee shall meet at the request of any of the Parties. Furthermore, the
Committee will work on an on-going basis through exchange of documents, e-mails
and other means of communication.

ARTICLE 6

Participation in
Committees

1.       Representatives
of Switzerland shall participate as observers in the committees responsible for
implementation of the Programmes covered by this Agreement. Participation shall
be in accordance with the Rules of Procedure of these committees. Switzerland shall be informed of the results of votes in these committees. Participation as
referred to in this paragraph shall take the same form, including procedures
for receipt of information and documentation, as that applicable to
representatives from Member States of the European Union.

2.       Representatives
of Switzerland shall participate as observers in the Board of Governors of the
Joint
Research Centre. This participation shall be in accordance with the rules of
procedure for the Joint Research Centre Board of Governors.

3.       Travel
costs and subsistence costs incurred by representatives of Switzerland
participating in meetings of the committees mentioned in paragraphs 1 and 2
shall be reimbursed by the Commission on the same basis as, and in accordance
with the procedures currently in force for, representatives of the Member
States of the European Union.

4.       Representatives
of Switzerland shall participate in Fusion for Energy bodies. Participation
shall be in accordance with the Fusion for Energy statutes, including their
provisions on voting rights.

5.       Participation
of representatives from Switzerland in the European Research Area and
Innovation Committee (ERAC) and in the ERA-related groups shall be in
accordance with the rules of procedure of the Committee and these groups.

ARTICLE 7

Participation

1.       Without
prejudice to the provisions of Article 3, legal entities established in Switzerland participating in Programmes covered by this Agreement and in the activities carried out
by Fusion for Energy shall have the same contractual rights and obligations as
legal entities established in the Union.

2.       For
legal entities established in Switzerland, the terms and conditions applicable
for the submission and evaluation of proposals and those for the granting and
conclusion of grant agreements and/or contracts under Programmes covered by
this Agreement and under the activities carried out by Fusion for Energy shall
be the same as those applicable for grant agreements and/or contracts concluded
under the same programmes or activities of Fusion for Energy with legal
entities established in the Union.

3.       Legal
entities established in Switzerland shall be eligible for financial instruments
established under Programmes covered by this Agreement.

4.       An
adequate number of Swiss experts shall be taken into consideration in the
selection of evaluators or experts under the Programmes covered by this
Agreement as well as for the activities carried out by Fusion for Energy,
taking into account the skills and knowledge appropriate to the tasks assigned
to them.

5.       Without
prejudice to the provisions of Article 1(4), Article 2(1c) and Article 3(2) and
to existing regulations and rules of procedure, legal entities established in
the Union may participate under equivalent terms and conditions to Swiss
partners in programmes and/or projects of the Swiss research programmes and
activities mentioned in Article 2(1c). The Swiss authorities may make
participation in a project by one or more legal entities established in the
Union subject to joint participation by at least one legal entity established
in Switzerland.

ARTICLE
8

Mobility

Each
Party shall undertake, in accordance with existing regulations and agreements
in force, to guarantee the entry and stay – as far as indispensable for successful
accomplishment of the activity concerned – of a number of their researchers
participating, in Switzerland and in the Union, in the activities covered by
this Agreement.

ARTICLE
9

Revision
and future collaboration

1.
Should
the Union or Euratom revise or extend their research programmes or the
activities of Fusion for Energy, this Agreement may be revised or extended
under mutually agreed conditions. The Parties shall exchange information and
views concerning any such revision or extension, as well as on any matters
which affect directly or indirectly Switzerland's cooperation in the fields
covered by Programmes covered by this Agreement and by the activities carried
out by Fusion for Energy. Switzerland shall be notified of the exact content of
the revised or extended programmes or activities within two weeks of their
adoption by the Union and Euratom. In case of such revision or extension of the
research programmes or activities, Switzerland may terminate this Agreement by
giving six months’ notice. The Parties shall give notice of any intention to
terminate or to extend this Agreement within three months after the adoption of
the Union or Euratom decision.

2.
Should
the Union or Euratom adopt new multi‑annual framework programmes for
research and technological development or a new decision to finance the Fusion
for Energy activities, this Agreement may be renewed or renegotiated under
conditions agreed mutually between the Parties. The Parties shall exchange
information and views on the preparation of such programmes or other current
and future research activities, including those carried out by Fusion for Energy,
through the Switzerland/Communities Research Committee.

ARTICLE
10

Relation
to other International Agreements

1.
The
provisions of this Agreement shall apply without prejudice to the advantages
envisaged by other international agreements binding one of the Parties and
reserved only for legal entities established on the territory of that Party.

2.
A
legal entity established in another country associated to Horizon 2020
(Associated Country) or to the Euratom Programme enjoys the same rights and
obligations under this Agreement as legal entities that are established in a
Member State provided that the Associated Country in which the entity is established
has agreed to award legal entities from Switzerland the same rights and
obligations.

ARTICLE
11

Territorial
application

This
Agreement shall apply, on the one hand, to the territories in which the Treaty
on the Functioning of the European Union and the Treaty establishing the
European Atomic Energy Community are applied and under the conditions laid down
in those Treaties and, on the other, to the territory of Switzerland.

ARTICLE
12

Annexes

Annexes
A, B and C shall form an integral part of this Agreement.

ARTICLE
13

Amendment
and termination

1.
This
Agreement shall apply for the duration of Horizon 2020, until 31 December 2018
for the Euratom Programme and until 31 December 2020 for the activities carried
out by Fusion for Energy.

Notwithstanding
paragraph 3 below, during the period from 1 January 2019 until 31 March 2019,
either Party may terminate this Agreement by written notice in relation to the
activities carried out by Fusion for Energy. In this case the Agreement shall
cease to apply on 31 December 2018 in relation to such activities.

This
Agreement shall be tacitly extended and apply under the same terms and
conditions to the Euratom Programme 2019-2020, unless either party notifies its
decision not to extend this Agreement to this Programme within three months
after the adoption of the Euratom Programme 2019-2020. In the case of such a
notification, this Agreement shall cease to apply on 31 December 2018 to the
Euratom Programme, without prejudice to the participation of Switzerland in Horizon 2020 and in the activities carried out by Fusion for Energy.

2.
This
Agreement may be amended only in writing by common consent between the Parties.
The procedure for entry into force of the amendments shall be the same as the
procedure applicable to this Agreement.

3.
Each
Party may terminate this Agreement at any time, subject to six months’ written
notice.

3bis. In case
the agreement between the European Community and its Member States, of the one part, and the Swiss Confederation, of the other, on the free movement of
persons is terminated, this Agreement shall cease to apply on the same date as
the aforementioned agreement. No prior written notice shall be required to that
effect.

3ter. This
Agreement shall cease to apply in the absence of the Swiss notification
required for the entry into force of the Protocol on the extension to Croatia
of the agreement between the European Community and its Member States, of the
one part, and the Swiss Confederation, of the other, on the free movement of
persons, within six months after the completion of Swiss internal procedures.
No prior written notice shall be required to that effect.

3quater. This
Agreement shall cease to apply with retroactive effect as of 31 December 2016,
in the absence of Swiss ratification of the Protocol on the extension to
Croatia of the agreement between the European Community and its Member States,
of the one part, and the Swiss Confederation, of the other, on the free
movement of persons, by 9 February 2017. If the Swiss Confederation ratifies
the abovementioned Protocol, this Agreement shall apply to the whole of Horizon
2020, Euratom Programme 2014-2018 and the activities carried out by Fusion for
Energy as of 1 January 2017.

4.
Projects
and activities in progress at the time of termination and/or expiry of this
Agreement shall continue until their completion under the conditions laid down
in this Agreement. The Parties shall settle by common consent any other
consequences of termination.

ARTICLE
14

Review
clause

In
the fourth year after this Agreement becomes applicable, Parties shall jointly
review the implementation of the Agreement, including the proportionality
factor governing the financial contribution of Switzerland, on the basis of the
data concerning participation of legal entities established in Switzerland in
indirect and direct actions under the Programmes covered by this Agreement in
the years 2014-2016 as well as Fusion for Energy activities.

ARTICLE
15

Entry
into force and provisional application

1.       This
Agreement shall be ratified or concluded by the Parties in accordance with
their respective rules. It shall enter into force on the date of the last
notification of completion of the procedures necessary to this end.

In
relation to Switzerland’s association to Horizon 2020, provisional application
of this Agreement shall start upon signature of this Agreement by
representatives of Switzerland and the Union.

In
relation to Switzerland’s association to Euratom Programme and Fusion for
Energy activities, provisional application of this Agreement shall start when Switzerland has signed the Agreement and Euratom has notified Switzerland of the completion of
procedures necessary for conclusion of this Agreement.

Provisional
application shall take effect from 15 September 2014. Legal entities
established in Switzerland shall be treated as entities from an Associated
Country in the meaning of Article 2(1) point 3 of Regulation (EU) No 1290/2013
of the European Parliament and of the Council laying down the rules for
participation and dissemination in Horizon 2020 for the purpose of the calls
for proposals or invitations to submit proposals, procurement procedures or
contests under Programmes covered by this Agreement which have a deadline from
15 September 2014 onwards.

If
legal entities established in Switzerland are not eligible for funding in calls
for proposals or invitations to submit proposals or contests under Programmes
covered by this Agreement financed from 2015 budget, on the basis of Article
10(1)(a) of Regulation (EU) No 1290/2013 of the European Parliament and of the
Council laying down the rules for participation and dissemination in Horizon
2020, for calculation of Switzerland's financial contribution issued in
accordance with Annex B of this Agreement for the year 2015, the budget of the
relevant Programme shall be diminished by the budget of these calls,
invitations to submit proposals or contests.

2.       Should
one of the Parties inform the other that it will not conclude or ratify this
Agreement, it is hereby agreed that:

-    the
Union and Euratom shall reimburse to Switzerland its contribution to the
general budget of the European Union, as provided for in Article 2(1b);

-
   however, the funds already committed by the Union and Euratom during the
provisional application of this Agreement for participation by legal entities
established in Switzerland in indirect actions or for participation in
activities carried out by Fusion for Energy, shall be deducted by the Union and
Euratom from the abovementioned reimbursement;

-    projects
and activities started during this provisional application and still in
progress at the time of the abovementioned notification shall continue until
their completion under the conditions laid down in this Agreement.

ARTICLE
16

Relation
to the 1978 Fusion Agreement

1.
Upon
its provisional application, this Agreement shall suspend the Cooperation
Agreement of 1978 in the field of controlled thermonuclear fusion and
plasma physics.

2.
Upon
its entry into force, this Agreement terminates and replaces the Cooperation
Agreement of 1978 in the field of controlled thermonuclear fusion and plasma
physics.

This
Agreement shall be drawn up in duplicate in the Bulgarian, Croatian, Czech,
Danish, Dutch, English, Estonian, Finnish, French, German, Greek, Hungarian,
Italian, Latvian, Lithuanian, Maltese, Polish, Portuguese, Romanian, Slovak,
Slovene, Spanish and Swedish languages, each of those texts being equally
authentic.

ANNEX A

PRINCIPLES ON
THE ALLOCATION OF

INTELLECTUAL
PROPERTY RIGHTS

I.       INTELLECTUAL
PROPERTY RIGHTS OF THE LEGAL ENTITIES OF THE PARTIES

1.
Each
Party shall ensure that the intellectual property rights of the legal entities
of the other Party participating in the activities undertaken under this
Agreement and the rights and obligations resulting from such participation are
treated in a manner compatible with the relevant international conventions
applicable to the Parties, notably the TRIPS Agreement (Agreement on Trade
Related Aspects of Intellectual Property Rights administered by the World Trade
Organisation), the Berne Convention (Paris Act 1971) and the Paris Convention
(Stockholm Act 1967).

2.
Legal
entities established in Switzerland participating in indirect actions under
Programmes covered by this Agreement shall have intellectual property rights
and obligations in accordance with Regulation (EU) No 1290/2013 of the European
Parliament and of the Council laying down the rules for participation and
dissemination in Horizon 2020 and the provisions of the Horizon 2020 and
Euratom Grant Agreements.

3.
Legal
entities established in Switzerland participating in activities carried out by
Fusion for Energy shall have intellectual property rights and obligations in
accordance with the rules on intellectual property rights and dissemination of
information and with the financial rules adopted by Fusion for Energy.

4.
Where
legal entities established in Switzerland participate in indirect actions under
Horizon 2020, implemented in accordance with Article 185 and Article 187 of the
TFEU, the legal entities established in Switzerland shall have intellectual
property rights and obligations in accordance with Regulation (EU) No 1290/2013
of the European Parliament and of the Council laying down the rules for
participation and dissemination in Horizon 2020 and provisions of the relevant
Grant Agreements and any other relevant rules, as applicable.

5.
Legal
entities established in a European Union Member State participating in Swiss
research programmes and/or projects shall have the same intellectual property
rights and obligations as legal entities established in Switzerland participating in these research programmes or projects.

II.      INTELLECTUAL
PROPERTY RIGHTS OF AND INFORMATION EXCHANGE BETWEEN THE PARTIES

1.
Unless
otherwise agreed between the Parties, the following rules shall apply to the
intellectual property rights generated by the Parties in the course of the
activities undertaken in accordance with Article 2(2) of this Agreement:

a. The
Party generating the intellectual property shall have ownership thereof. Where
their respective shares in the work cannot be determined, the Parties shall co‑own
the intellectual property;

b. The
Party holding ownership shall grant the other Party rights of access to and the
use of the intellectual property with a view to the activities referred to in
Article 2(2) of this Agreement. No charge shall be made for granting rights of
access to and the use of the intellectual property.

2.
Unless
otherwise agreed between the Parties, the following rules shall apply to
scientific publications from the Parties:

a. Where
a Party publishes a work containing data, information and technical or
scientific results arising from the activities undertaken under this Agreement
in journals, articles, reports and books, including audio-visual works and
software, a worldwide, non‑exclusive, irrevocable royalty‑free
licence to translate, adapt, transmit and publicly distribute the data,
information and technical or scientific results in question shall be granted to the other Party unless precluded by existing
intellectual property rights of third parties;

b. All
copies of copyrighted data and information to be publicly distributed and
prepared under this section shall indicate the names of the author or authors,
unless an author expressly declines to be named. Copies shall also bear a
clearly visible acknowledgement of the cooperative support of the Parties.

3.
Unless
otherwise agreed between the Parties, the following rules shall apply to
undisclosed information of the Parties:

a. At
the time of submission to the other Party of information relating to the
activities undertaken under this Agreement, each Party shall identify the
information which it wishes to remain undisclosed;

b. For
the specific purposes of application of this Agreement, the receiving Party
may, on its own responsibility, communicate such undisclosed information as
confidential information to bodies or persons under its authority and under an
obligation to keep the information confidential;

c. With
the prior written consent of the Party providing undisclosed information, the
receiving Party may disseminate such information more widely than otherwise
permitted by subparagraph (b). The Parties shall cooperate in developing
procedures for requesting and obtaining prior written consent for wider dissemination,
and each Party shall grant such approval to the extent permitted by its
domestic policies, regulations and laws;

d. Non‑documented
undisclosed or other confidential or privileged information provided in
seminars or other meetings of the representatives of the Parties arranged under
this Agreement, or information arising from the attachment of staff, use of
facilities or indirect actions must remain confidential, where the recipient of
such undisclosed or other confidential or privileged information was made aware
of the confidential character of the information before it was communicated, in
accordance with subparagraph (a);

e. Each
Party shall ensure that undisclosed information which it obtains in accordance
with subparagraphs (a) and (d) shall be controlled as provided for in this
Agreement. If one of the Parties becomes aware that it will be, or may be
expected to become, unable to meet the non‑dissemination provisions of
subparagraphs (a) and (d), it shall immediately inform the other Party. The
Parties shall thereafter consult to define an appropriate course of action.

ANNEX B

FINANCIAL RULES
GOVERNING THE CONTRIBUTION OF SWITZERLAND REFERRED TO IN ARTICLE 4 OF THIS
AGREEMENT

I.       DETERMINATION
OF FINANCIAL PARTICIPATION

1.
The
Commission shall communicate to Switzerland together with relevant background
material including the corresponding Eurostat data, as soon as possible and at
the latest on 1 September of each year and any Multi-annual Financial
Framework 2014-2020 update as soon as available:

a. The
amounts in commitment appropriations in the statement of expenditure of the
draft budget of the European Union for the following year corresponding to the
Programmes covered by this Agreement and the Union final contribution to Fusion
for Energy;

b. The
estimated amount of the contributions derived from the draft budget,
corresponding to the participation of Switzerland for the following year in
each of the Programmes covered by this Agreement and in the
activities carried out by Fusion for Energy.

2.
Once
the general budget has been finally adopted and at the same time as the first
call for funds of the year, the Commission shall communicate to Switzerland the
above mentioned amounts with relevant background material including the
corresponding Eurostat data, in separate statements of expenditure
corresponding to the participation of Switzerland in each of the Programmes
covered by this Agreement and in the activities carried out by Fusion for
Energy.

II.      PAYMENT
PROCEDURES

1.
In
June and November of each financial year, the Commission shall issue a separate
call for funds to Switzerland corresponding to its contribution to each of the
Programmes covered by this Agreement and to the activities carried out by
Fusion for Energy under this Agreement. These calls for funds shall provide
respectively for the payment of six twelfths of Switzerland's contribution for
each call for funds and not later than 30 days after receipt of the
corresponding call for funds. However, in the last year of the two Programmes
and the last year of the Council Decision 2013/791/Euratom[9] amending Decision
2007/198/Euratom establishing the European Joint Undertaking for ITER and the
Development of Fusion Energy and conferring advantages upon it, the Commission
shall issue in June a single call for funds covering the whole year to be paid
not later than 30 days after receipt of the corresponding call for funds.

1bis.
Notwithstanding paragraph 1 above, the Commission shall issue by 15 December
2014 a call for funds to Switzerland corresponding to 7/24 of its annual
contribution to Programmes covered by this Agreement in 2014, with the
exception of fusion activities under the Euratom Programme. The Commission
shall also issue by 15 December 2014 a call corresponding to 12/12 of Swiss
annual contribution to the fusion activities of the Euratom Programme and the
activities carried out by Fusion for Energy in 2014. These calls shall provide
for the payment of Switzerland's contribution not later than 30 days after the
receipt of the corresponding call for funds.

Paragraphs
below shall apply accordingly.

2.
The
contributions of Switzerland shall be expressed and paid in Euros.

3.
Switzerland
shall pay its contribution under this Agreement according to the schedule in
paragraph 1. Any delay in payment shall give rise to the payment of interest at
a rate equal to the one-month inter‑bank offered rate (EURIBOR). This rate
shall be increased by 1.5 percentage point for each month of delay. The
increased rate shall be applied to the entire period of delay.

III.       CONDITIONS
FOR IMPLEMENTATION

1.
The
financial contribution of Switzerland to the two Programmes and the activities
carried out by Fusion for Energy in accordance with Article 4 of this
Agreement shall remain unchanged for the financial year in question. Any
relevant changes in the EU budget adopted in the financial year in question
shall be taken into account in the first call for funds issued in the following
year, except in the final year of the respective Programmes and activities.

2.
The
Commission, at the time of the closure of the accounts relating to each
financial year (n), within the framework of the establishment of the revenue
and expenditure account, shall proceed to the regularisation of the accounts
with respect to the participation of Switzerland, taking into consideration
modifications which have taken place, either by transfer, cancellations, carry‑overs,
or by supplementary and amending budgets during the financial year.

3.
This
regularisation shall occur at the time of the first payment for the year n+1.
However, the final such regularisation shall occur not later than July of the
fourth year following the end of each of the two Programmes and the end of the
duration of the Council Decision 2013/791/Euratom amending Decision
2007/198/Euratom establishing the European Joint Undertaking for ITER and the
Development of Fusion Energy and conferring advantages upon it. Payment by Switzerland shall be credited to the European Union and Euratom programmes as budget
receipts allocated to the appropriate budget heading in the statement of
revenue of the general budget of the European Union.

IV.    INFORMATION

1.
At
the latest on 1 September of each financial year (n+1), the statement of
appropriations for the Programmes covered by this Agreement and for the
activities carried out by Fusion for Energy related to the previous financial
year (n), shall be prepared and transmitted to Switzerland for information,
according to the format of the Commission's revenue and expenditure account.

2.
The
Commission shall make available to Switzerland the statistics and all other
general financial data relating to the implementation of each of the two
Programmes and activities carried out by Fusion for Energy which is made
available to the Member States.

ANNEX C

FINANCIAL
CONTROLS OF SWISS PARTICIPANTS IN HORIZON 2020, IN THE EURATOM PROGRAMME AND IN
THE ACTIVITIES CARRIED OUT BY FUSION FOR ENERGY COVERED BY THIS AGREEMENT

I.       DIRECT
COMMUNICATIONS

The
Commission may communicate directly with the participants in Programmes covered
by this Agreement and in the activities carried out by Fusion for Energy
established in Switzerland and with their subcontractors. They may submit
directly to the Commission all relevant information and documentation which
they are required to submit on the basis of the instruments referred to in this
Agreement and of the grant agreements and/or contracts concluded to implement
them.

II.      AUDITS

1.
In
accordance with the Regulation of the European Parliament and of the Council
(EU) No 966/2012[10]
and Commission Delegated Regulation (EU) No 1268/2012[11] and with the other
rules referred to in this Agreement, the grant agreements and/or contracts
concluded with participants in the programmes and activities established in
Switzerland may provide for scientific, financial, technological or other
audits to be conducted at any time on the premises of the participants and of
their subcontractors by Commission agents or by other persons mandated by the
Commission.

2.
Commission
agents, the European Court of Auditors and other persons mandated by the
Commission shall have access to relevant sites and works and to all
information, including information in electronic form, required in order to
carry out such audits. This right of access shall be stated explicitly in the
grant agreements and/or contracts concluded to implement the instruments
referred to in this Agreement.

3.
After
the expiry of Horizon 2020 and the Euratom Programme, or after 31 December 2020
for the activities carried out by Fusion for Energy, audits may be conducted on
the terms laid down in the grant agreements and/or contracts in question.

4.
The
Swiss Federal Audit Office shall be informed in advance of the audits conducted
on Swiss territory. Such notification shall not be a legal precondition for
carrying out such audits. The Swiss Federal Audit Office or other competent
Swiss authorities designated by the Swiss Federal Audit Office may assist
during such audits.

III.    INVESTIGATIONS
BY THE EUROPEAN ANTI FRAUD OFFICE (OLAF)

1.
Within
the framework of this Agreement, the Commission (OLAF) may carry out
investigations, including on-the-spot checks and inspections, on Swiss
territory, in accordance with the terms and conditions laid down in Council
Regulation (Euratom, EC) No 2185/96[12]
and Regulation (EU, Euratom) No 883/2013[13]
of the European Parliament and of the Council with a view to establishing
whether there has been fraud, corruption or any other illegal activity
affecting the financial interests of the Union and/or of Euratom.

2.
On‑the‑spot
checks and inspections shall be prepared and conducted by OLAF in close
collaboration with the Swiss Federal Audit Office or with other competent Swiss
authorities designated by the Swiss Federal Audit Office, which shall be
notified in good time of the object, purpose and legal basis of the checks and
inspections, so that they can provide all the requisite help. To that end, the
officials of the competent Swiss authorities may participate in the on-the-spot
checks and inspections.

3.
If
the Swiss authorities concerned so wish, the on‑the‑spot checks and
inspections may be carried out jointly by OLAF and them.

4.
Where
the participants in Programmes covered by this Agreement and activities carried
out by Fusion for Energy resist an on‑the‑spot check or inspection,
the Swiss authorities, acting in accordance with national rules, shall give
OLAF investigators such assistance as they need to allow them to discharge
their duty in carrying out an on‑the‑spot check or inspection.

5.
OLAF
shall report as soon as possible to the Swiss Federal Audit Office or other
competent Swiss authorities designated by the Swiss Federal Audit Office any
fact or suspicion relating to an irregularity which has come to its notice in
the course of the on‑the‑spot check or inspection. In any event
OLAF shall inform the aforementioned authorities of the result of such checks
and inspections.

IV.    INFORMATION
AND CONSULTATION

1.
For
the purposes of proper implementation of this Annex, the competent Swiss and Union authorities shall regularly exchange information and, at the request of one of the
Parties, shall conduct consultations.

2.
The
competent Swiss authorities shall inform the Commission without delay of any
fact or suspicion which has come to their notice relating to an irregularity in
connection with the conclusion and implementation of the grant agreements
and/or contracts concluded in application of the instruments referred to in
this Agreement.

V.      CONFIDENTIALITY

Information
communicated or acquired in any form under this Annex shall be covered by professional
secrecy and protected in the same way as similar information is protected by
Swiss law and by the corresponding provisions applicable to the Union
institutions. Such information may not be communicated to persons other than
those within the Union institutions or in the Member States or Switzerland
whose functions require them to know it nor may it be used for purposes other
than to ensure effective protection of the Parties’ financial interests.

VI.    ADMINISTRATIVE
MEASURES AND PENALTIES

Without
prejudice to application of Swiss criminal law, administrative measures and
penalties may be imposed by the Commission in accordance with the Regulation of
the European Parliament and of the Council (EU) No 966/2012, and Commission
Delegated Regulation (EU) No 1268/2012, and with Council Regulation (EC,
Euratom) No 2988/95[14]
on the protection of the European Communities’ financial interests.

VII.   RECOVERY
AND ENFORCEMENT

Decisions
taken by the Commission under Horizon 2020 or Euratom Programme within the scope
of this Agreement which impose a pecuniary obligation on persons other than
States shall be enforceable in Switzerland. The enforcement order shall be
issued, without any further control than verification of the authenticity of
the act, by the authorities designated by the Swiss government, which shall
inform the Commission thereof. Enforcement shall take place in accordance with
the Swiss rules of procedure. The legality of the enforcement decision shall be
subject to control by the Court of Justice of the European Union. Judgments
given by the Court of Justice of the European Union pursuant to an arbitration
clause in a contract or grant agreement under Horizon 2020 and Euratom
Programme shall be enforceable on the same terms.

[1] Established by Council Decision
(2007/198/Euratom) of 27 March 2007 (OJL90, 30.03.2007, p.58).

[2] OJ L347, 20.12.2013, p.104.

[3] OJ L347, 20.12.2013, p.965.

[4]
OJ L347,
20.12.2013, p.948.

[5]
OJ L347,
20.12.2013, p.81.

[6] OJ L347, 20.12.2013, p.147.

[7]
OJ L349,
21.12.2013, p.100.

[8] OJ C115, 9.05.2008, p.47.

[9] OJ L349, 21.12.2013, p.100.

[10] OJ L298, 26.10.2012, p.1.

[11] OJ L362, 31.12.2012, p.1.

[12] OJ L292, 15.11.1996, p.2.

[13]  OJ L248, 18.9.2013, p.1.

[14] OJ L312, 23.12.1995, p.1.

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