Article 1 Establishment of a Joint Undertaking
1. A European Joint Undertaking for ITER and the Development of Fusion Energy (Fusion for Energy) (the Joint Undertaking) is hereby established for a period of 35 years starting on 19 April 2007. 2. The tasks of the Joint Undertaking shall be as follows: (a) to provide the contribution of the European Atomic Energy Community (Euratom) to the ITER International Fusion Energy Organisation; (b) to provide the contribution of Euratom to Broader Approach Activities with Japan for the rapid realisation of fusion energy; (c) to prepare and coordinate a programme of activities in preparation for the construction of a demonstration fusion reactor and related facilities including the International Fusion Materials Irradiation Facility (IFMIF). 3. The Joint Undertaking shall have its seat in Barcelona in Spain. 4. The Joint Undertaking shall be considered as an international body within the meaning of Article 151(1)(b) of Council Directive 2006/112/EC, and as an international organisation within the meaning of the second indent of Article 23(1) of Directive 92/12/EEC, of Article 22 point (c) of Directive 2004/17/EC and of Article 15 point (c) of Directive 2004/18/EC.
Article 2 Members
The Joint Undertaking shall have the following Members: (a) Euratom, represented by the Commission; (b) the Member States of Euratom; (c) third countries which have concluded a cooperation agreements with Euratom in the field of controlled nuclear fusion that associate their respective research programmes with the Euratom programmes and which have expressed their wish to become Members of the Joint Undertaking.
Article 3 Statutes
The Statutes of the Joint Undertaking, as set out in the Annex, are hereby adopted.
Article 4 Financing
1. The resources required for the Joint Undertaking to carry out its tasks shall be determined as follows: (a) as regards the tasks referred to in Article 1(2)(a), in accordance with the ITER Agreement; (b) as regards the tasks referred to in Article 1(2)(b), in accordance with the Broader Approach Agreement with Japan; (c) as regards the tasks referred to in Article 1(2)(c), in accordance with research and training programmes adopted pursuant to Article 7 of the Treaty. 2. The resources of the Joint Undertaking shall consist of a contribution from Euratom, contributions from the ITER host State, the annual membership contributions and voluntary contributions from Members of the Joint Undertaking other than Euratom, and additional resources. 3. The indicative total resources deemed necessary for the Joint Undertaking in accordance with paragraph 1 shall be EUR 9 653 million ( 14 ) . This is detailed as follows: (EUR million) 2007-2016 2017-2041 2007-2041 of which 2007-2011 Constant values Total 4 127 1 717 5 526 3 544 9 653 4. The indicative total contribution from Euratom to the resources referred to in paragraph 3 shall be EUR 7 649 million, of which a maximum of 15 % shall be for administrative expenditure. This is detailed as follows: (EUR million) 2007-2016 2017-2041 2007-2041 of which FP7 2007-2011 Constant values Total 3 147 1 290 4 502 2 887 7 649
Amendment rationale: CONTEXT OF THE PROPOSAL This Council Decision amends the Council Decision (2007/198/Euratom) of 27 March 2007 establishing the European Joint Undertaking for ITER and the Development of Fusion Energy and conferring advantages upon it to provide the basis for the financing of the activities of this Joint Undertaking (hereinafter "Fusion for Energy") for the period 2014-2020 under the Euratom Treaty. The Fusion for Energy cost estimates for the construction phase (cost for Europe only), covering the period 2007-2020, amounted in March 2010 to EUR 7.2 billion (in 2008 value). In July 2010 the Council capped the European contribution to that phase to EUR 6.6 billion (in 2008 value). In February 2013, the European Council set up the maximum level of the Euratom commitments for ITER in the Multiannual Financial Framework Regulation for the period 2014-2020 at EUR 2.707 million (in 2011 value). Under the Seventh Framework Programme the Euratom contribution was made available through the Community research and training programme adopted pursuant to Article 7 of the Euratom Treaty. This financing modality required to comply with a series of requirements in terms of participation, rules, planning, monitoring and evaluation which are specific to research programmes. These requirements are now redundant given the competencies and role assigned to Fusion for Energy in its Statutes. Differently from what was done under the Seventh Framework Programme, this proposal is not designed as a research programme under Article 7 of the Euratom Treaty. It is instead based on Article 47 and refers to the participation of Euratom in the financing of the Joint Undertaking. This amendment would serve the purpose of ensuring the transfer of funds from the Commission to Fusion for Energy for the European contribution to ITER without the aforementioned requirements specific to research programmes. This, however, does not prevent, in particular in case of additional costs, voluntary contributions from Members of the Joint Undertaking other than Euratom as provided for in Article 12(1)(c) of the Statutes of that Undertaking. This amendment allows securing the financing of the project for the next Multiannual Financial Framework. The transfer of funds will have the advantage not to be limited anymore to the five years foreseen by Article 7 of the Euratom Treaty for research and training programmes. It will be aligned with the period covered by the Multiannual Financial Framework and run for seven years. According to the ITER Agreement, the ITER project will have an initial duration of 35 years (i.e. until 2041); thus, subsequent Council decisions will be needed to continue to fund the Euratom contribution to this project. Activities to be funded by this Decision are supporting the implementation of the roadmap towards the production of electricity from fusion by 2050, adopted by members of the European Fusion Development Agreement (EFDA) in November 2012. As such, this Decision will allow synergies and complementarities with fusion research activities funded under Council Regulation XXX [the Euratom Research and Training Programme].
Revised version (Article 4 Financing):
1. The resources required for the Joint Undertaking to carry out its tasks shall be determined as follows: (a) as regards the tasks referred to in Article 1(2)(a), in accordance with the ITER Agreement; (b) as regards the tasks referred to in Article 1(2)(b), in accordance with the Broader Approach Agreement with Japan; (c) as regards the tasks referred to in Article 1(2)(c), in accordance with research and training programmes adopted pursuant to Article 7 of the Treaty or through any other decision adopted by the Council. 2. The resources of the Joint Undertaking shall consist of a contribution from Euratom, contributions from the ITER host State, the annual membership contributions and voluntary contributions from Members of the Joint Undertaking other than Euratom, and additional resources. The contributions from third countries which have concluded a cooperation agreement with Euratom in the field of nuclear energy research, including controlled nuclear fusion, that associate their respective research programmes with the Euratom programmes, shall be determined in the respective cooperation agreement with Euratom. 3. The Euratom contribution to the Joint Undertaking for the 2014-2020 period is set at EUR 2 915 015 000 (in current values).
Article 5 Financial Regulation
1. The Joint Undertaking shall have a distinct financial regulation based on the principles of the Framework Financial Regulation. The financial regulation of the Joint Undertaking (the financial regulation) may depart from the Framework Financial Regulation where the specific operating needs of the Joint Undertaking so require and subject to prior consultation with the Commission. 2. The Joint Undertaking shall establish its own internal audit service. 3. Discharge for the implementation of the budget of the Joint Undertaking shall be given by the European Parliament on the recommendation of the Council.
Article 6 Staff
The Staff Regulations, as well as the rules adopted jointly by the institutions of the European Community for the purposes of the application of those Staff Regulations, shall apply to the staff of the Joint Undertaking.
Article 7 Privileges and immunities
The Protocol on the Privileges and Immunities of the European Communities shall apply to the Joint Undertaking, its Director and staff.
Article 8 Advantages
The Member States shall confer all the advantages provided for in Annex III to the Treaty on the Joint Undertaking within the scope of its official activities, for as long as the Joint Undertaking exists.
Article 9 Liability and jurisdiction of the Court of Justice
1. The contractual liability of the Joint Undertaking shall be governed by the relevant contractual provisions and by the law applicable to the contract in question. The Court of Justice of the European Communities shall have jurisdiction to give judgment pursuant to any arbitration clause contained in a contract concluded by the Joint Undertaking. 2. In the case of non-contractual liability, the Joint Undertaking shall, in accordance with the general principles common to the laws of the Member States, make good any damage caused by its servants in the performance of their duties. The Court of Justice of the European Communities shall have jurisdiction in disputes relating to compensation for such damage. 3. The Court of Justice shall have jurisdiction in actions brought against the Joint Undertaking, including decisions of its Governing Board, under the conditions provided for in Articles 146 and 148 of the Treaty. 4. Any payment by the Joint Undertaking in respect of the liability referred to in paragraphs 1 and 2 and the costs and expenses incurred in connection therewith shall be considered as expenditure of the Joint Undertaking and shall be covered by the resources of the Joint Undertaking.
Article 10 Dissemination of information
The Joint Undertaking shall agree with the Commission appropriate provisions which will allow the Community to exercise its rights and obligations under Title II, Chapter 2 of the Treaty.
Article 11 Host agreement
A host agreement shall be concluded between the Joint Undertaking and Spain within three months from the establishment of the Joint Undertaking.
Article 12 Application
This Decision shall apply from the 20th day following its publication in the Official Journal of the European Union . This Decision is addressed to the Member States.
Article 13 Financial regulation
1. The financial regulation and its implementing rules shall be adopted by the Governing Board. 2. The financial regulation lays down the rules for the establishment and implementation of the budget of the Joint Undertaking. 3. The financial regulation shall be in accordance with the general principles set out in Annex III.
Article 14 Annual activity report
The annual activity report shall record the implementation of the work programmes by the Joint Undertaking. It shall in particular outline the activities conducted by the Joint Undertaking and evaluate the results with respect to the objectives and the timetable set, the risks associated with the activities carried out, the use of resources and the general operation of the Joint Undertaking. The annual activity report shall be prepared by the Director, approved by the Governing Board and sent to the Members, the Commission, the European Parliament and the Council of the European Union.
Amendment rationale: CONTEXT OF THE PROPOSAL This Council Decision amends the Council Decision (2007/198/Euratom) of 27 March 2007 establishing the European Joint Undertaking for ITER and the Development of Fusion Energy and conferring advantages upon it to provide the basis for the financing of the activities of this Joint Undertaking (hereinafter "Fusion for Energy") for the period 2014-2020 under the Euratom Treaty. The Fusion for Energy cost estimates for the construction phase (cost for Europe only), covering the period 2007-2020, amounted in March 2010 to EUR 7.2 billion (in 2008 value). In July 2010 the Council capped the European contribution to that phase to EUR 6.6 billion (in 2008 value). In February 2013, the European Council set up the maximum level of the Euratom commitments for ITER in the Multiannual Financial Framework Regulation for the period 2014-2020 at EUR 2.707 million (in 2011 value). Under the Seventh Framework Programme the Euratom contribution was made available through the Community research and training programme adopted pursuant to Article 7 of the Euratom Treaty. This financing modality required to comply with a series of requirements in terms of participation, rules, planning, monitoring and evaluation which are specific to research programmes. These requirements are now redundant given the competencies and role assigned to Fusion for Energy in its Statutes. Differently from what was done under the Seventh Framework Programme, this proposal is not designed as a research programme under Article 7 of the Euratom Treaty. It is instead based on Article 47 and refers to the participation of Euratom in the financing of the Joint Undertaking. This amendment would serve the purpose of ensuring the transfer of funds from the Commission to Fusion for Energy for the European contribution to ITER without the aforementioned requirements specific to research programmes. This, however, does not prevent, in particular in case of additional costs, voluntary contributions from Members of the Joint Undertaking other than Euratom as provided for in Article 12(1)(c) of the Statutes of that Undertaking. This amendment allows securing the financing of the project for the next Multiannual Financial Framework. The transfer of funds will have the advantage not to be limited anymore to the five years foreseen by Article 7 of the Euratom Treaty for research and training programmes. It will be aligned with the period covered by the Multiannual Financial Framework and run for seven years. According to the ITER Agreement, the ITER project will have an initial duration of 35 years (i.e. until 2041); thus, subsequent Council decisions will be needed to continue to fund the Euratom contribution to this project. Activities to be funded by this Decision are supporting the implementation of the roadmap towards the production of electricity from fusion by 2050, adopted by members of the European Fusion Development Agreement (EFDA) in November 2012. As such, this Decision will allow synergies and complementarities with fusion research activities funded under Council Regulation XXX [the Euratom Research and Training Programme].
Article 15 Annual accounts and supervision
1. Within two months after the end of each financial year the provisional accounts of the Joint Undertaking shall be submitted to the Commission and the Court of Auditors of the European Communities (‘the Court of Auditors’). The Court of Auditors shall, by 15 June after the end of each financial year, make its observations on the provisional accounts of the Joint Undertaking. Within six months after the end of each financial year, the Director shall submit the final accounts of the Joint Undertaking to the Commission, the Council, the European Parliament and the Court of Auditors. The European Parliament, on the recommendation of the Council acting by a qualified majority, shall, before 30 April of year n+2, give a discharge to the Director in respect of the implementation of the budget of the Joint Undertaking for year n. 1. Within two months after the end of each financial year the provisional accounts of the Joint Undertaking shall be submitted to the Commission and the Court of Auditors of the European Communities (‘the Court of Auditors’). The Court of Auditors shall, by 15 June after the end of each financial year, make its observations on the provisional accounts of the Joint Undertaking. Within six months after the end of each financial year, the Director shall submit the final accounts of the Joint Undertaking to the Commission, the Council, the European Parliament and the Court of Auditors. The European Parliament, on the recommendation of the Council acting by a qualified majority, shall, before 30 April of year n+2, give a discharge to the Director in respect of the implementation of the budget of the Joint Undertaking for year n. 2. The European Anti-Fraud Office (OLAF) set up by Commission Decision 1999/352/EC, ECSC, Euratom ( 1 ) shall enjoy the same powers in respect of the Joint Undertaking and its staff as it enjoys in respect of Commission departments. As soon as the Joint Undertaking is established, it shall accede to the Interinstitutional Agreement of 25 May 1999 between the European Parliament, the Council and the Commission concerning internal investigations by OLAF ( 2 ) . The Governing Board shall approve that accession and adopt the necessary measures needed to facilitate internal investigations conducted by OLAF. 3. All decisions adopted and contracts concluded by the Joint Undertaking, shall provide explicitly that OLAF and the Court of Auditors may carry out on-the-spot inspections of the documents of all contractors and sub-contractors which have received Community funds, including at the premises of the final beneficiaries.
Amendment rationale: CONTEXT OF THE PROPOSAL This Council Decision amends the Council Decision (2007/198/Euratom) of 27 March 2007 establishing the European Joint Undertaking for ITER and the Development of Fusion Energy and conferring advantages upon it to provide the basis for the financing of the activities of this Joint Undertaking (hereinafter "Fusion for Energy") for the period 2014-2020 under the Euratom Treaty. The Fusion for Energy cost estimates for the construction phase (cost for Europe only), covering the period 2007-2020, amounted in March 2010 to EUR 7.2 billion (in 2008 value). In July 2010 the Council capped the European contribution to that phase to EUR 6.6 billion (in 2008 value). In February 2013, the European Council set up the maximum level of the Euratom commitments for ITER in the Multiannual Financial Framework Regulation for the period 2014-2020 at EUR 2.707 million (in 2011 value). Under the Seventh Framework Programme the Euratom contribution was made available through the Community research and training programme adopted pursuant to Article 7 of the Euratom Treaty. This financing modality required to comply with a series of requirements in terms of participation, rules, planning, monitoring and evaluation which are specific to research programmes. These requirements are now redundant given the competencies and role assigned to Fusion for Energy in its Statutes. Differently from what was done under the Seventh Framework Programme, this proposal is not designed as a research programme under Article 7 of the Euratom Treaty. It is instead based on Article 47 and refers to the participation of Euratom in the financing of the Joint Undertaking. This amendment would serve the purpose of ensuring the transfer of funds from the Commission to Fusion for Energy for the European contribution to ITER without the aforementioned requirements specific to research programmes. This, however, does not prevent, in particular in case of additional costs, voluntary contributions from Members of the Joint Undertaking other than Euratom as provided for in Article 12(1)(c) of the Statutes of that Undertaking. This amendment allows securing the financing of the project for the next Multiannual Financial Framework. The transfer of funds will have the advantage not to be limited anymore to the five years foreseen by Article 7 of the Euratom Treaty for research and training programmes. It will be aligned with the period covered by the Multiannual Financial Framework and run for seven years. According to the ITER Agreement, the ITER project will have an initial duration of 35 years (i.e. until 2041); thus, subsequent Council decisions will be needed to continue to fund the Euratom contribution to this project. Activities to be funded by this Decision are supporting the implementation of the roadmap towards the production of electricity from fusion by 2050, adopted by members of the European Fusion Development Agreement (EFDA) in November 2012. As such, this Decision will allow synergies and complementarities with fusion research activities funded under Council Regulation XXX [the Euratom Research and Training Programme].
Article 16 Accession
1. Upon accession to Euratom, any new Member State of the European Union shall become a Member of the Joint Undertaking. 2. Any third country which concludes a cooperation agreement with Euratom in the field of controlled nuclear fusion that associates its respective research programmes with the Euratom programmes and expresses its wish to become a Member of the Joint Undertaking shall become a Member.
Article 17 Duration
The Joint Undertaking shall be established for a period of 35 years starting on 19 April 2007.
Article 18 Support from the host State
A host agreement shall be concluded between the Joint Undertaking and the host State concerning, in particular, the site and support to be provided.
Article 19 Winding up
1. At the end of the period provided for in Article 17, or following a decision by the Council, the Joint Undertaking shall be wound up. 2. For the purpose of conducting the proceedings in winding up the Joint Undertaking, the Governing Board shall appoint one or more liquidators, who shall comply with the instructions issued by the Governing Board. 3. When the Joint Undertaking is being wound up, it shall return to the Host State any physical support item made available by the host State in accordance with the host agreement provided for in Article 18. 4. When any physical support item has been dealt with as provided for in Paragraph 3, any further assets shall be used to cover the liabilities of the Joint Undertaking and the costs relating to its winding up. Any surplus or deficit shall be distributed among or met by the Members existing at the time of the winding up in proportion to their actual total contributions to the Joint Undertaking.
Article 20 Ownership and assignment of rights
1. The Joint Undertaking shall own all resources, tangible and intangible, and financial assets created by it or acquired by it unless otherwise agreed between the Commission and the Joint Undertaking. 2. Members and their national fusion organisations shall offer free of charge to the Joint Undertaking any title, rights and obligations arising under contracts concluded and orders placed by or with the support of Euratom in relation to the activities of the Joint Undertaking prior to its establishment. 3. The Joint Undertaking may take over any contract and order referred to in paragraph 2.
Article 21 Amendments
1. Any Member of the Joint Undertaking may make a proposal to the Governing Board for the amendment of these Statutes. However, proposals for changes in the voting system and rights, and for determining the voting rights of new Members shall be made by Euratom. 1. Any Member of the Joint Undertaking may make a proposal to the Governing Board for the amendment of these Statutes. However, proposals for changes in the voting system and rights, and for determining the voting rights of new Members shall be made by Euratom. 2. Upon approval by the Governing Board the proposal shall be submitted to the Commission. 3. The Commission will make a proposal to the Council for the approval of such amendments in accordance with Article 50 of the Treaty.
Article 22 Settlement of disputes
1. Without prejudice to Article 154 of the Treaty, any dispute either between Members of the Joint Undertaking or between one or more Members and the Joint Undertaking concerning the interpretation or application of these Statutes, which is not settled by the good offices of the Governing Board, may, at the request of any party to the dispute, be submitted to an arbitration tribunal. 2. The arbitration tribunal shall be established in each individual case. The tribunal shall be composed of three members nominated jointly by the parties to the dispute. The members of the arbitration tribunal shall elect the chairman from amongst themselves. 3. If the parties in the dispute fail to nominate the members of the arbitration tribunal within two months of the request for submission of a dispute to an arbitration tribunal, or if within one month of the nomination of the members these members do not elect a chairman, such member or members or the chairman shall be nominated by the President of the Court of Justice of the European Communities at the request of one of the parties to the dispute. 4. The arbitration tribunal shall reach its decision by a majority of votes. Such decision shall be binding and final.