CELEX: 51996PC0423
Language: en
Date: 1996-09-04 00:00:00
Title: Recommendation for a COUNCIL DECISION approving the signature of an Agreement for scientific and technological cooperation between the European Community and the Republic of South Africa

COMMISSION OF THE EUROPEAN COMMUNITIES
                                            Brussels, 04.09.1996
                                            COM(96)423 final
                           Recommendation for a
                           COUNCIL DECISION
approving the signature of an Agreement for scientific and technological
  cooperation between the European Community and the Republic of
                               South Africa
                       (presented by the Commission)
 ---pagebreak---  ---pagebreak---               Recommendation for a Council Decision approving the signature of an
               Agreement for scientific and technological cooperation between the European
               Community and the Republic of South Africa
1. In the framework of the new relationship between the European Union and South Africa, the
   South African authorities have repeatedly requested the development of closer relations with
   the European Union in the area of science and technology.
   The Commission reacted favourably to these requests by sending, in October 1994, an
   exploratory mission to South Africa. It led to the conclusion that there was a mutual interest
   in cooperation in a wide variety of research sectors. The mission also concluded that closer
   collaboration with South Africa in the area of science and technology might have positive
   effects on the larger region of Southern Africa, taking into account South Africa's pivotal role
   in the Southern African Development Community (SADC).
   After having received on 22 December 1994 a proposal for a cooperation agreement in science
   and technology from the South African Government and after further exploratory discussions
   and consultation among Commission services concerned, the Commission asked the Council
   for negotiating directives for a S&T cooperation agreement covering all activities related to the
   European Community's multi-annual Framework Programme for RTD (1994-1998). On
   22 January 1996 the Council authorised the Commission to negotiate the agreement in question.
   The negotiations resulted in the attached draft agreement, including its annex on the
   dissemination and utilization of information and management, allocation and exercise of
   intellectual property rights.
   The draft Agreement provides for :
        the participation of research entities, including the Parties themselves, in RTD projects
        conducted by South Africa or the Community in research areas covered by the European
        Community's Fourth Framework Programme;
        the shared use of research facilities;
        visits and exchanges of researchers, engineers and technicians;
        the exchange of information;
        other activities as may be jointly determined by the Joint Science and Technology
        Cooperation Committee in accordance with the applicable policies and programmes of the
        Parties;
                                               3:
 ---pagebreak---        the endorsement by the Parties of Technology Management Plans as a condition for
       research projects to proceed, as described in the Annex to the draft Agreement;
       cooperative activities to be subject to the availability of funds and to the applicable laws
       and regulations, policies and programmes of South Africa and the Community; no transfer
       of funds will take place, except for the purpose of participation by South African research
       entities in the specific programme of RTD in the field of cooperation with third countries
       and international organisations, for which South Africa is considered a developing country.
4. The draft Agreement has been initialled on 7 May 1996. The results of the negotiations are
   in conformity with the negotiating directives as adopted by the Council on 22 January 1996.
5. In the light of the above mentioned considerations the Commission proposes that the Council,
   without prejudice to the conclusion of the Agreement after consultation of the European
   Parliament :
       decide that the Agreement be signed on behalf of the Community and
        authorize the President of the Council to appoint the persons duly empowered to sign on
        behalf of the Community.
                                                 3
 ---pagebreak---                                      Draft
                                AGREEMENT
                 on scientific and technological cooperation
   between the European Community and the Republic of South Africa
THE COUNCIL OF THE EUROPEAN UNION acting on behalf of the
European Community (hereinafter "the Community"), of the one part, and
THE GOVERNMENT OF THE REPUBLIC OF SOUTH AFRICA acting on
behalf of the Republic of South Africa (hereinafter "South Africa"), of the
other part,
hereinafter referred to as the "Parties";
CONSIDERING the importance of science and technology for their
economic and social development;
WHEREAS the Community and South Africa are pursuing research and
technological development including demonstration in a number of areas of
common interest and mutual benefit may be derived if the Parties engage
in cooperative activities;
WHEREAS such cooperation should also be to the benefit of the Southern
African Development Community where possible and justified;
WHEREAS, for this purpose, it is desirable that a framework for cooperation
be established;
WHEREAS South Africa, on the one hand, and the Community and its
Member States, on the other hand, are negotiating an agreement referring
inter alia to the negotiation of a cooperation agreement in the field of
science and technology;
WHEREAS, by Decision No 1110/94/EC, the European Parliament and the
Council of the European Union adopted a Framework Programme of
 European Community activities in the field of research and technological
development and demonstration (1994-1998), hereinafter called the "Fourth
 Framework Programme";
                                  H-5
                                                                            i.
 ---pagebreak--- WHEREAS, without prejudice to the relevant provisions of the Treaty
instituting the European 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 South Africa in the fields of
science, technology, research and development, and to conclude, where
appropriate, agreements to that end;
HAVE AGREED AS FOLLOWS:
                                   ARTICLE 1
                                    Objectives
The Parties shall encourage and facilitate cooperation between the
Community and South Africa in fields of common interest where they are
supporting research and development including demonstration activities to
advance science and/or technology.
                                   ARTICLE 2
                                    Definitions
 For the purposes of this Agreement:
 a)   "Cooperative activity" means any activity carried out under this
      Agreement and includes joint research;
 b)   "Information " means scientific or technical data, results or methods of
      research and development stemming from the joint research and any
      other information deemed necessary by the participants engaged in
      cooperative activity, including, where necessary, the Parties
      themselves;
c)    "Intellectual Property" shall have the meaning defined in Article 2 of the
      Convention establishing the World Intellectual Property Organization,
      done at Stockholm, 14 July, 1967;
d)    "Joint research" means research, technological development and
      demonstration that is implemented with or without financial support
      from either or both Parties and that involves collaboration by
      participants from both the Community and South Africa;
e)    "Participant" or "Research entity" means any person, legal entity,
      university, research institute or any other body or undertaking
      participating in a cooperative activity, including the Parties themselves.
                                                                                 H
 ---pagebreak---                                        ARTICLE 3
                                         Principles
Cooperation shall be conducted on the basis of the following principles:
a)   mutual benefit;
b)   timely exchange of information which may affect the actions of
     participants in cooperative activities; and
c)   within the framework of applicable laws and regulations, effective
     protection of intellectual property and equitable sharing of intellectual
     property rights, as set out in the Annex, which forms an integral part
     of this Agreement.
                                        ARTICLE 4
                               Scope of the cooperation
Cooperation under this Agreement may cover all research and technological
development and demonstration (hereinafter referred to as RTD) activities
related to the Fourth Framework Programme and all similar RTD activities
in South Africa.
                                        ARTICLE 5
                               Modalities of cooperation
Cooperation may take the following forms:
(a) (i)     participation of South African research entities in RTD projects
            related to the Fourth Framework Programme and a reciprocal
            participation of research entities of the European Community in
            South African projects in similar areas of research; as regards
            South African participation in Community RTD projects, such
            participation shall be subject to the rules applicable for the
            participation of undertakings, research centres and universities in
            the specific programmes of RTD of the Community 1;
    Council Decision of 21 November 1994 concerning the rules for the participation of undertakings,
    research centres and universities in the research, technological development and demonstration
    activities of the European Community (O.J. nr L306 of 30.11.1994, p. 8)
                                             *
 ---pagebreak---     (ii) for the purpose of participation by South African research entities
          in the specific programme of RTD in the field of cooperation with
          third countries and international organizations (1994-1998) South
          Africa is considered a developing country;
(b) shared use of research facilities;
(c) visits and exchanges of research workers, engineers and technicians;
(d) participation by experts in seminars, symposia and workshops;
(e) scientific networks and training of researchers;
(f) exchange of information on practices, laws, regulations              and
    programmes relevant to cooperation under this Agreement;
(g) other modalities as may be recommended by the Joint Science and
    Technology Cooperation Committee in accordance with the applicable
    policies and programmes of the Parties.
With the exception of projects under (a)(ii) above, joint RTD projects shall
proceed once the participants have concluded a Joint Technology
Management Plan (JTMP), as indicated in the Annex to this Agreement.
                                  ARTICLE 6
     Joint Science and Technology Cooperation Committee (JSTCC)
(a) A Joint Science and Technology Cooperation Committee will be
    established in order to administer this Agreement; it will be composed
    of representatives of the Commission and of South Africa; it shall adopt
     its rules of procedure.
(b) The functions of the JSTCC shall be to:
     1.    promote and review the various cooperation activities envisaged
           under this Agreement;
     2.    make recommendations pursuant to Article 5 (g);
     3.    advise the Parties on ways to enhance cooperation consistent with
           the principles set out in this Agreement;
     4.    review the efficient and effective functioning of the Agreement;
     5.    provide a report annually to the Parties on the level, status and
           effectiveness of cooperation undertaken under this Agreement.
                                                                             n
                                        %
 ---pagebreak--- (c)  The JSTCC shall meet as mutually agreed, meetings being held
     alternately in the Community and South Africa.
(d)  Costs incurred by or on behalf of the Committee shall be met by the
      Party to whom the members are responsible. Costs, other than those
     of travel and accommodation, which are directly associated with
      meetings of the Committee, shall be met by the host Party.
                                  ARTICLE 7
                                   Funding
(a)   Cooperative activities shall be subject to the availability of funds and
     to the applicable laws and regulations, policies and programmes of the
      Parties.
(b)   Costs incurred by participants in cooperative activities shall not require
      any transfer of funds from one Party to the other, except for the
      participation referred to under Article 5 (a) (ii).
                                  ARTICLE 8
                      Entry of Personnel and Equipment
Each Party shall take all reasonable steps and use its best efforts, within
existing laws and regulations, to facilitate entry to and exit from its territory
of personnel, material and equipment of the participant(s) engaged in or
used in cooperative activities under this Agreement.
                                  ARTICLE 9
                  Dissemination and Utilization of Information
Research entities established in South Africa, participating in Community
RTD projects, shall, as regards ownership, dissemination and utilization of
information and intellectual property arising from such participation, be
subject to the rules for the dissemination of the research results from the
specific programmes of RTD of the Community, and the Annex to this
Agreement.
Research entities established in the Community, taking part in South African
RTD projects, shall, as regards ownership, dissemination and utilization of
information and intellectual property arising from such participation, have the
same rights and obligations as those of South African research entities, and
be subject to the Annex to this Agreement.
                                                                                  a
 ---pagebreak---                                  ARTICLE 10
                            Territorial Application
This Agreement shall apply, on the one hand to the territories in which the
Treaty establishing the European Community is applied and under the
conditions laid down in that Treaty and, on the other hand to the territory of
South Africa.
                                 ARTICLE 11
           Entry into Force; Termination; Settlement of Disputes
(a)  This Agreement shall enter into force on the date on which the Parties
     have notified each other in writing that their legal requirements have
     been fulfilled.
(b)  This Agreement shall be concluded for the duration of the Fourth
     Framework Programme and will be renewable by common agreement
     between the Parties (tacit renewal) for the specific programmes
     implementing subsequent Framework Programmes of the Community.
(c)  This Agreement may be amended by agreement of the Parties.
     Amendments shall enter into force on the date on which the Parties
     have notified each other in writing that their legal requirements have
     been fulfilled.
(d) This Agreement may be terminated at any time by either Party upon
     a six months written notice. The expiration or termination of this
     Agreement shall not affect the validity or duration of any arrangements
     made under it, or any specific rights and obligations that have accrued
     in compliance with the Annex.
(e)  All questions or disputes related to the interpretation or implementation
     of this Agreement shall be settled between the Parties by mutual
     agreement.
                                 ARTICLE 12
This Agreement is drawn up in duplicate in the Danish, Dutch, English,
Finnish, French, German, Greek, Italian, Portuguese, Spanish and Swedish
languages, each of these texts being equally authentic.
For the Council of the European Union
For the Government of the Republic of South Africa
                                                                               i
 ---pagebreak---                                                                                      ANNEX
   ANNEX ON THE DISSEMINATION AND UTILIZATION OF INFORMATION
              AND MANAGEMENT, ALLOCATION AND EXERCISE OF
                            INTELLECTUAL PROPERTY RIGHTS
L
    OWNERSHIP, ALLOCATION AND EXERCISE OF RIGHTS
1.  All research carried out pursuant to this Agreement shall be "joint research". The
   participants performing the joint research shall develop Joint Technology Management
   Plans (JTMPs) which shall contain, as a minimum, principles in respect of the ownership
   and use, including publication, of information and Intellectual Property (IP) to be created
   in the course of the joint research*.
   The JTMPs shall be approved by the responsible funding agency or department of the
   Party involved in financing the research, before the conclusion of the specific research
   and development cooperation contracts to which they are attached. The JTMPs shall be
   developed taking into account the aims of the joint research, the relative contributions
   of the participants, the advantages and disadvantages of licensing by territory or for
   fields of use, requirements imposed by applicable laws, the need for dispute settlement
   procedures and other factors deemed appropriate by the participants. The rights and
   obligations concerning the research and information generated by visiting researchers in
   respect of IP shall also be addressed in the JTMPs.
2. Information or IP created in the course of joint research and not addressed in a JTMP
   shall be allocated following the procedures set out in 1,1 according to the principles set
   out in that JTMP. In case of disagreement, which cannot be resolved by the agreed
   dispute resolution procedure, such unallocated information or IP shall be owned jointly
   by all the participants involved in the joint research from which the information or IP
   results, and each participant to whom this provision applies shall have the right to use
   such information or IP for his/her own commercial exploitation with no geographical
   limitation.
3. In accordance with applicable laws, each Party shall ensure that the other Party and its
   participants may have the rights to IP allocated to them in accordance with the principles
   set out in section I of this Annex.
4. While maintaining the conditions of competition in areas affected by the Agreement,
   each Party shall endeavour to ensure that rights acquired pursuant to thé Agreement, and
   arrangements made under it, are exercised in such a way as to encourage in particular:
   (i)  the dissemination and use of information created, disclosed, or otherwise made
        available, under the Agreement;
   (ii) the adoption and implementation of international standards.
   The indicative features of such JTMPs are set out in Appendix.
                                                 .M
                                                                                               i
 ---pagebreak--- II.   COPYRIGHT WORKS
Copyright belonging to the Parties or to their participants shall be accorded treatment
consistent with the Berne Convention (Paris Act 1971).
IIL SCIENTIFIC LITERARY WORKS
Without prejudice to Section IV, unless otherwise agreed in the JTMP, any publication of
results of the joint research shall be made jointly by the participants. In addition to the
foregoing general rule, the following procedure shall apply:
1.    In the case of publication by a Party or public bodies of that Party of scientific and
      technical journals, articles, reports, books, including video and software, arising from
     joint research pursuant to the Agreement, the other Party shall be entitled, with written
      permission from the publisher, to a world-wide, non-exclusive, irrevocable, royalty-free
      licence to translate, reproduce, adapt, transmit and publicly distribute such works.
2.    The Parties shall endeavour to disseminate literary works of a scientific character arising
      from joint research pursuant to the Agreement and published by independent publishers
      as widely as possible.
3.    All copies of a copyright work to be publicly distributed and prepared under this
      provision shall indicate the names of the author(s) of the work unless an author or
      authors expressly declines or decline to be named. Copies shall also bear a clearly
      visible acknowledgement of the cooperative support of the Parties
IV. UNDISCLOSED INFORMATION
A.    Documentary undisclosed information
1.    Each Party or its participants shall identify at the earliest possible moment, and
      preferably in the JTMP, the information that it wishes to remain undisclosed in relation
      to this Agreement, taking into account, among other things, the following criteria:
           secrecy of the information in the sense that the information is not, as a body or in
           the precise configuration or assembly of its components, generally known among
           or readily accessible by lawful means to experts in the field;
           the actual or potential commercial value of the information by virtue of its secrecy;
           previous protection of the information in the sense that it has been subject to steps
           that were reasonable under the circumstances by the person lawfully in control, to
           maintain its secrecy.
                                                X9L
 ---pagebreak--- 2.    Participants shall not normally be required to provide undisclosed information to the
      Parties. Should the Parties become aware of such information, they shall respect the
      privileged nature thereof, and it shall not be further disclosed by, within, or between the
      Parties, without the written consent of the participant(s) to whom the information
      belongs. These limitations shall automatically terminate when such information is
      disclosed by the owner, without restriction, to experts in the field.
3.    Each Party shall ensure that undisclosed information, communicated between them under
      the Agreement, and its ensuant privileged nature is readily recognizable as such by the
      other Party, for example, by means of an appropriate marking or restrictive legend. This
      also applies to any reproduction of the said information, in whole or in part.
4.    Undisclosed information communicated under the Agreement, and received from the
      other Party, may be disseminated by the receiving Party to persons within or employed
      by the receiving Party and other concerned departments or agencies of the receiving
      Party authorized for the specific purposes of the joint research underway, provided that
      any undisclosed information so disseminated shall be pursuant to a written agreement
      of confidentiality and shall be readily recognizable as such, as set out above.
5.    With the prior written consent of the Party providing undisclosed information under the
      Agreement, the receiving Party may disseminate such undisclosed information more
      widely than otherwise permitted in Paragraph 3 above. The Parties shall cooperate in
      developing procedures for requesting and obtaining prior written consent for such wider
      dissemination, and each Party will grant such approval to the extent permitted by its
      domestic policies, regulations and laws.
B.    Non-documentary undisclosed information
Non-documentary undisclosed or other confidential or privileged information provided in
seminars and other meetings arranged under the Agreement, or information arising from the
attachment of staff, use of facilities, or joint projects, shall be treated by the Parties or their
participants according to the principles specified in Section IV A above, provided, however,
that the recipient of such undisclosed or other confidential or privileged information has been
made aware in advance and in written form of the confidential character of the information
to be communicated.
C. Control
Each Party shall make its best efforts to ensure that undisclosed information received by it
under the Agreement shall be controlled as provided therein. If one of the Parties becomes
aware that it will be, or may reasonably be expected to become, unable to meet the non-
dissemination provisions of Paragraphs A and B above, it shall immediately inform the Party
likely to be affected by the dissemination. The Parties involved shall thereafter consult to
define an appropriate course of action.
                                                  Ai
                                                                                                    i
 ---pagebreak---                                                                                    APPENDIX
                             INDICATIVE FEATURES OF A
                 JOINT TECHNOLOGY MANAGEMENT PLAN (JTMP)
The JTMP is part of the contract to be concluded between the participants in joint research
defining their respective rights and obligations. With respect to Intellectual Property Rights,
the JTMP will normally address, inter alia: ownership, protection, user rights for research and
development purposes, exploitation and dissemination, including arrangements for joint
publication, the rights and obligations of visiting researchers and dispute settlement
procedures. The JTMP may also address foreground and background information, the rules
governing disclosure of undisclosed information, licensing and deliverables.
                                                                                                ft
                                               t<<
 ---pagebreak---                                     FINANCIAL STATEMENT
1. Title of the operation
International scientific cooperation : cooperation agreement in science and technology with the
Republic of South Africa.
2. Relevant budget headings
Travel costs for EC officials and EC experts will be charged to the specific budget headings of the
programmes within the Community RTD IV Framework Programme/EC part.
3. Legal basis
Article 130i and 130m in conjunction with Article 228 of the EC Treaty.
Council and Parliament Decisions 1110/94/EC of 26 April 1994 and 616/96/CEof 25 March 1996.
4. Description of the operation
4.1.    Specific objectives of the operation
The essential objective is to stimulate RTD cooperation between the EC and South Africa in terms
of research projects covered by the Framework Programme.
4.2.    Duration
The agreement shall be concluded for the duration of the Framework Programme (1994-1998) and
will be renewable by common agreement between the parties (tacit renewal) for all the specific
programmes implementing subsequent Framework Programmes. It may be terminated at any time
by either Party upon a six months' written notice.
5. Classification of the expenditure
5.1.    Non-compulsory expenditure
5.2.    Differentiated appropriations
6. Type of expenditure
Financing missions to South Africa by Commission officials; organization of workshops, seminars
and meetings in Europe and South Africa.
                                                 AK~
 ---pagebreak--- 7. Financial impact
7.1.     Method of calculating the total annual cost of the operation (estimate)
         a. Preparatory activities, review of the cooperation : meetings of the Joint Science and
             Technology Cooperation Committee, exchange of information, visits of officials and
             experts to South Africa                                                      50.000 Ecus
         b. Scientific and technical workshops/meetings                                   60.000 Ecus
                                                              Total :               110.000 Ecus/year
7.2.      Indicative multi-annual schedules (MECU)
          FP IV-EC
                           1995        1996         1997         1998       1999 +      2000 +       TOTAL
      Commitments       2599,467     2836,804     3164,853    3162,876         -           -       11764,000
        Payments         694,567     2010,940     2402,509    3284,733     2054,287     1316,964   11764,000
8. Anti-fraud measures
There are many administrative and financial controls at each stage of the signature and
implementation of research contracts. Among these controls are the following :
At the stage prior to the conclusion
     Initial selection of proposals based on the scientific merit of the project and on the realism of
     research costs relative to the content, duration of the project and its potential implications.
-    Analysis of financial details submitted by the proposers in the contract negotiation form.
After signature of the contract
-    Examination of expenditure at a number of levels (financial officer, scientific officer) before
     payment.
-    Internal audit performed by the Financial Controller.
-    On-site audit, which should allow the detection of errors and other irregularities by examination
     of supporting documents. In order to improve the efficiency of these controls, the Commission
     services have established an audit unit which coordinates all controls taking place. These
     controls are carried out either by members of this audit unit or by audit firms with which the
     Commission has concluded a contract, under the supervision of personnel from this audit unit.
-    On the spot inspections made by the Financial Controller of the Commission and by the Court
     of Auditors of the European Union.
                                                  AG
 ---pagebreak--- 9. Cost-effectiveness analysis
9.1.    Specific objectives, target population
-   the agreement is designed to enable the Community and South Africa to profit on the basis of
    the principle of mutual benefit, from the scientific and technical progress achieved under their
    reciprocal research programmes, via the participation of the South African scientific community
    and industrial sector in the Community's research projects and via the independent and non-
    subsidized participation of bodies established in the Community in South African research
    projects;
-   beneficiaries in the EC and South Africa will be the scientific communities, the industrial sector
    and the general public, thanks to the direct and indirect effects of cooperation.
9.2.    Justification of the operation
Community budget intervention is indispensable because the planned cooperation comes under the
implementation of the Framework Programme, including the budgetary section : participation by
South Africa in certain specific programmes and administrative expenditure on the European side
(missions by Community officials, organization of seminars in the Community and South Africa).
9.3.    Monitoring and evaluation of the operation
The cooperation agreement will be evaluated regularly by the Commission services concerned. The
evaluation will comprise the following elements :
a. Collection of information :
    On the basis of data from the specific programmes of the framework programmes.
b. Overall evaluation of the operation :
    An evaluation of all the cooperation activities in the context of this agreement will be made by
    the Commission's departments at the end of each year.
10.     Implications for administrative expenditure
-   The Commission is not requesting any additional posts for the management of the Agreement.
-   No officials are being specifically assigned to manage the Agreement. Cooperation activities
    and the implementation of the Agreement will be managed by the staff authorized for the
    specific programmes under the present Framework Programme and possible subsequent
    Framework Programmes.
                                                  M
 ---pagebreak---                                                                    ISSN 0254-1475
                                                            COM(96) 423 final
                                              DOCUMENTS
EN                                                                        u    is
                                    Catalogue number : CB-CO-96-418-EN-C
                                                             ISBN 92-78-07898-0
Office for Official Publications of the European Communities
L-2985 Luxembourg
                                             AS