EU-Bureau of the BMBFPT-DLRKönigswinterer Str. 550-55453227 BonnGermany

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eub@dlr.dewww.eubuero.de

Legal Aspects in FP 7 Nicole Schröder, LL.M.

INCO-NET MIRA - Training Seminar for Palestine Information Point in Cyprus

Content

• Documents in FP 7• Participation• Grant Negotiation • Grant Agreement • Consortium Agreement

Grant Agreement –Terminology

• “Grant” – Financial contribution from EU-budget

• “Grant Agreement” = Contract between

Beneficiaries and Commission

• “Beneficiary” = Contractor, project participant

• “Funding Schemes” = Funding Instrument

• “Certificate on Financial Statement” = Audit

Certificate, Certificate on correctness of incurred

costs

Hierarchy of norms

Documents for the implementation of FP 7 projects

EC contract

FP 7Regulation

(Rules for setting up FP 7 )

Rules for ParticipationFrame for FP 7

EC Financial Regulation

Grant Agreement(Contract for projects)

Guidelines

Official Documents –http://cordis.europa.eu/fp7/find-doc_en.html

Grant Agreement (binding texts)

Guidelines (non binding)

Participation

• Any legal entity (legal personality)natural person

• At least three legal entities from three different member states or asscociated states to FP7, independent of each other- Exception: European Research Council (ERC), support actions (CSA-SA), Marie Curie grants

• Addtional requirements may be specified in the respective work programmes

Rules for Participation, OJ L 391/1-17, 30.12.2006

Participation

• At least 3 independent legal entities from 3 different countries

Guide for Applicants

Participation

Associated countries to FP7:• EEA countries: Iceland, Liechtenstein, Norway• Candidate countries: Croatia, Macedonia,

Serbia, Turkey• Israel• Switzerland

Any other countries are called Third Countries• Third Countries may participate provided

that the minimum conditions for participation are met

Participation (Third Countries)

Country groups:ICPC: International Cooperation Partner Countries• Mediterranean partner countries (MPC)• Western Balkan Countries (WBC)• Eastern Europe and Central Asian countries (EECA)• Africa, the Caribbean and the Pacific countries (ACP)• Asia• Latin America

Industrialised Countries:USA, Kanada, Japan, Australia, South Korea, New Zealand

• http://cordis.europa.eu/fp7/who_en.html#countries

http://cordis.europa.eu/fp7/who_en.html#countries

ICPC - International Cooperation Partner Countries

URF- Unique Registration Facility

URF- Unique Registration Facility

URF- Unique Registration Facility

Validation

http://cordis.europa.eu/fp7/urf-valid_en.html

European Commission Research Directorate-GeneralT5 Framework programme logistics - URF Validation Team SDME 11/083 B-1049 BrusselsBelgium

Mail: RTD-URF-VALIDATION@ec.europa.eu

LEAR - Legal entity appointed representative

• Each legal entity must appoint one person (the so-called LEAR – Legal Entity Appointed Representative) for being the correspondent towards the Commission on all issues related to the legal status of the entity

• The LEAR provides the Commission with up-to-date legal and financial data (including supporting documents, where necessary) and commits to maintain the information up-to-date, enabling future use for grants and other transactions between the entity and the Commission research (and other) programmes.

• The LEAR communicates his/her role internally in his/her organisation and provides the PIC to other employees dealing with proposals and grant agreements

• http://cordis.europa.eu/fp7/urf-lear_en.html

ftp://ftp.cordis.europa.eu/pub/fp7/docs/piclist_en.pdf

• Grant Agreement Negotiations

Partner Partner Partner PartnerPartnerCoordinator

Third Parties

Grant Agreement

Relation: Commission and consortium

Negotiation and award of grant

Before Contract Negotiation:

• Verification of legal existence and legal status of

participant

• Verification of financial capacity of participants

• Verification of operational capacities

• Entry into Unique Registration Facility (URF)

• Single URF code for each participant in the

Framework Programm

Negotiation and award of grant

• Commission will use negotiation of grant agreement to

define the project as clearly as possible

• Leave enough flexibility for the implementation of the

project

- For transfer of budget between partners and

activities

- For necessary adjustments in project

implementation

- For unforeseen research need

Negotiation Mandate

Indicates:• clarifications and changes to be made to the project (Based on the ESR)• maximum EC Contribution• duration for the project• deadline for receipt of first draft of DoW and GPFs• deadline by which time negotiations should be completed• contact details of the responsible Project & Legal Officer at the Commission• Negotiation Meetings (if needed)

Two Negotiation Stages

1 – Technical Negotiations

2 – Legal and Financial Negotiations

The two are essentially linked

1 - Technical Negotiations

To agree on the final content of the DoW including:

• Addressing the comments made in the ESR• Verifying that the project objectives are SMART (S-Specific, M-Measurable, A-Attainable, R-Realistic, T-Timely)• The list of deliverables (timing, content and dissemination level)• The project milestones and their assessment criteria• An indicative time schedule for the reporting and the project reviews.

Deliverables

Listed in a table of standard format detailing:

• WP reference number• Beneficiary responsible for WP• Estimated no. of Person/Months• Date for submission

Compulsory Deliverables• Periodic and final reports • A dissemination and use plan• Report on horizontal issues (gender and science

& society related issues)

2. Legal & Financial Negotiations

• Budget for full duration

• Budget breakdown per period

• Subcontracting and other third parties

• Pre-financing

• The capacity of the Coordinator to fulfil this role

• The start date of the project

• Any special clauses required

The GPFs- The Grant Agreement Preparation Forms

• Electronic submission for 1st negotiation round

• Must be completed by all applicants (even those who are not requesting a financial contribution)

• The use of the GPF editor is mandatory

• Basic information from the Proposal Submission Forms will be uploaded to pre-fill part of the GPFs

• Final version in paper with original signatures

Completion of Negotiations

• Once agreement is reached on all technical, financial and legal issues a draft GA is sent to coordinator

• GA signature• Coordinator signs two originals of the GA • The coordinator must distribute a copy of

the GA • All beneficiaries must sign Form A to

accede to the GA

Partner Partner Partner PartnerPartnerCoordinator

Third Parties

Grant Agreement

Relation: Commission and consortium

• to clearly define the technical/scientific content of the project

• to establish rights and obligations of participants (including

submission of reports, termination etc.)

• to define start date, duration and budget of the project

• identify whether and what part of the EC financial contribution is

based on reimbursement of eligible costs, lump sums, flat rates

• specific provisions for certain types of actions (IPR particularly)

• grant agreement comes into force upon signature by the coordinator

and the Commission and applies to each participant that has acceded

to it

Grant Agreement

• Signature by coordinator & Commission

• Accession of beneficiaries via “Form A”

• Later accession of beneficiaries via “Form B”

• Entry into force upon signature by coordinator & Commission

Grant Agreement

• Structure: – Core part: GA parameters, – Annex I: Description of Work (DoW), – Annex II: General Conditions,– Annex III: Specific provisions for funding

schemes– Annex IV, V & VI: Form A,B & C– Annex VII: Form D terms of reference for the

certificate of costs and Form E certificate on the methodology (NEW)

• The conclusion of a Consortium Agreement is mandatory (except if excluded by Call)

Grant Agreement

Grant Agreement - Structure

• Grant Agreement Core Text• Annex I Technical Content, Description of Work (DoW) • Annex II General Conditions• Annex III Specific provisions (ERAnet-Plus, Research

Infrastructures, SME actions, Civil Society Organisations

• Annex IV (Form A) Accession of beneficiaries to the grant agreement

• Annex V (Form B) Request for accession of a new benefiary• Annex VI (Form C) Financial statement (specific to Funding

Scheme)• Annex VII (Form D) Certificate of Financial Statements

(Form E) Certificate on the methodology

List of special clauses, actual Version

Grant Agreement – Core Contract

Grant Agreement – Annex II General Conditions

• Financial provisions– Total EU-contribution– Payment modalities– Upper funding limits– Indirect costs– Certificates– Third parties– No financial collective responsibility

• Other provisions– Reporting

Grant Agreement

Partner Partner Partner PartnerPartnerCoordinator

Third Parties

Consortium Agreement

Relation: between the partners in the consortium

• Consortium Agreement (CA) governs the structure of the consortium and the relationship of the project participants

• Consortium Agreement may not contradict any parts of the grant agreement with the commission or the rules for participation

• Has to be signed by all project partners – (before the project start)

• Is obligatory in the 7th Framework Programme (with few exceptions)

• Several model grant agreements exist (e.g. DESCA)

Consortium Agreement

Consortium Agreement –

Content• Management, decision making structures, conflict resolution

• Responsibilities / roles of the partners

• Time schedule for project implementation

• Budget allocation

• Access to know how

• Liabilities

• Confidentiality

• Applicable law and arbitration

ftp://ftp.cordis.europa.eu/pub/fp7/docs/checklist_en.pdf

Konsortialvertrag (KV) Beispiel: DESCA-

Konsortialvertragsmodell

General Structure

GENERAL ISSUES

Responsibilities

Liability

GOVERNANCE

Consortium Bodies

Decision making

FINANCE IPR

Access RightsDisseminationBudgeting Payments

http://www.desca-fp7.eu/

Intellectual Property Rights – Who is the owner of the

results

• IPR Definitions• IPR Provisions• Access Rights

Intellectual Property Rights

Important Definitions:

Background: • Knowledge held by participants prior to their

accession to the EC grant agreement • Background can be excluded from access in grant

agreement

Foreground:• Knowledge generated within a project by one or

several participants

Intellectual Property Provisions

Ownership: each participant owns the foreground it generates

Joint ownership: default joint ownership regime in absence of specific agreement:“any owner can grant non-exclusive licenses to third parties, subject to prior notification and fair and reasonable compensation to the other owner(s) with no right to sub-licence”

Transfer of ownership of foreground:Prior notification only to the other participants who may waive their rights to be notified regarding specific third parties(requirement to notify Commission may be in grant agreement, Commission may object to transfers or exclusive licenses to third countries if contrary to ethical or competitiveness principles)

Intellectual Property Provisions

Protection, use, dissemination, publication

• Foreground capable of industrial or commercial application shall be protected

• Owner of foreground may transfer to another participant if it does not wish to protect or to the Commission

• Foreground to be used and disseminated • Notice of dissemination (including publication) to

be given to other participants (not Commission)• Publications and patent applications must

indicate the Community financial assistance

Intellectual Property Provisions

Access rights

• Participants generally have access to the background and foreground of the project partners if necessary for project implementation or use of the results

• Participants define the background they need and may exclude it from access to other partners - not necessarily prior to signature of EC grant agreement (positive or negative list)

• Possibility to grant exclusive licenses for knowledge generated in the project (foreground) if other participants agree

• Special provisions for certain types of actions e.g. frontier research, SME measures, security research

Access rights (FP7)

Access rights to background

Access rights to foreground resulting from the project

For carrying out the project

Yes, if a participant needs them for carrying out its own work under the project

Royalty-free unless otherwise agreed before acceding to the grant agreement

Royalty-free

For use (exploitation + further research)

Yes, if a participant needs them for using its own foreground

Either fair and reasonable conditions or royalty free- to be agreed

http://cordis.europa.eu/fp7/ncp_en.html

http://ec.europa.eu/research/index.cfm?pg=enquiries

Thank you very much for your

attention !