FP7 Legal Aspects (March 2007)

Dr. Wolfram Rieneck, NCP Health - Austria

Legal Aspects

Model Grant Agreement & Consortium Agreement


Legal Background

Legal Framework: „Rules for Participation“:•Minimum Requirements

–Minimum size of consortia–Independency of the partners–Regulations for participation of third countires–...

•Procedure–Calls for proposals–Evaluation and selection of proposals / funding–Implementation and model grant agreement–Consortia–...

•Financial Contribution of the Community–Eligibility and funding schemes–Payments, distribution of fundings,...

•Rules for Dissemination and Exploitation / IPR issues–New knowledge and protection rights

•Ownership•Protection, Publication, Dissemination, Use

–Access rights to pre-existing knowledge


Legal Background

Model grant agreement= „Contract“ with the European CommissionContents (practical terms):•Implementation of the project

–General principles–Reporting and payments–Implementation

•Financial provisions–General financial provisions–Guarantee fund–Controls recoveries–sanctions

•Intellectual property rights, use and dissemination–Foreground–Access rights


Rules for participation

•Regulation (EG) No. 1906/2006 of the European Parliament and the Council

•Passed on the 18th of December 2006 (get into force three days after publication)

•Rules for the participation of companies, research organisations and universities at the FP7 and for the dissemination of the research results

•Basis for the model grant agreement (until now only draft version available)


Guidelines

Guidelines for applicants

FP7 Guide to financial issues (in publication, will be available in March)

IPR Guidelines: announced but no deadline

Checklist for Consortium Agreements: CA will be obligate

Guidelines for frontier research projects (ERC)


Model grant agreement

•Contractual agreement between the EU Commission and the consortium - will be regulated on the basis of the model grant agreement•The agreement will be signed between the Commission and the Coordinator - other partners of the consortium will join to the agreement by Form A•The grant agreement regulates beside others:

–Rules for the correct participation at the project–Regulations for the financing regime–IPR–Changes of the contract, controls, scnctions–Guideline for changes of the contract will be published mid of 2007

•Already the title shall show a change of the EU´s philosophy


New rules compared to FP6

•Only full cost models•Audit certificates only necessary for fundings higher than 375.000,- €•New methods for the calculation of personal and overhead costs•New payment modalities•Commission will pay interest for delay automatically•Introduction of the guarantee funds•Consortium agreement obligate unless there is another regulation listed in the call•IPR: changes of access rights (Affiliates!)•IPR: no preliminary information of the Commission concerning publications and assigments of patents


Structure of the grant agreement (1)

•Model Grant Agreement - standard with specific provisions for each project•Annex I: description of the project•Annex II: general conditions•Annex III: Specific regulations for

–Research for SMEs–Research for the benefit of specific groups (research for civil society organisations -BSG- CSO)–Specific provisions for transnational access activities - infrastructure–No Annex III for Networks of excellence (!)


Structure of the grant agreement (2)

•Annex IV - Form A: Accession of the partners to the contract and the consortium

•Annex V - Form B: Accession of new partners to the contract and the consortium (application for the accession)

•Annex VI - Form C: Financial statement: Specific for each funding scheme i.e. CP, NoE, CA, CSA

•Annex VII - Form D: Guidelines for the certification of financial audits

–Form E: Guidelines for the certification of the calculation methods

•Form D and Form E are not available yet even not as draft!


Model grant agreement - important regulations

Art.1: Contractual partnersArt.2: Scope of the agreementArt.3: Start date and duration of the projectArt.4: Reporting periods, Audits and contractual languageArt.5: Maximum financial funding by the CommunityArt.6: Prefiancing, Payment rulesArt.7: Applications of special clauses (for example concerning security research, no access rights for the affiliates)Art.8: Communication rulesArt.9: Applicable law and responsible courtArt.11: coming into force of the agreement


Possible negotiations

•Technical content of the project (Annex I)

•Participants (Art.1)

•Project start date and project duration (Art.3)

•Reporting periods and Audits (Art.4)

•Financial contribution of the Community (Art.5)

•Application of special clauses (Art.7) - very important!!!


Possible negotiations

•Technical content of the project (Annex I)

•Participants (Art.1)

•Project start date and project duration (Art.3)

•Reporting periods and Audits (Art.4)

•Financial contribution of the Community (Art.5)

•Application of special clauses (Art.7) - very important!!!


General Conditions Annex II (1)

•Part A - Implementation of the project–Organisation of the consortium–Role of the coordinator, obligations of the partners–Reporting obligations / payment modalities

•Part B - Financial regulations–Eligible / non eleigible costs; direct / indirect costs–Maximum funding rates–Income generated by the project–Guarantee funds

•Part C - Intellectual property rights IPR–Final provisions–Amendments, termination etc.



•Role of the coordinator Art.II.2.3–Contact person/organisation to the Commission - intermediary between Commission and consortium (all communication via coordinator)–Signatory of the grant agreement with the Commission; organisator for the accession of the other partners–Receipient and administrator of the Communities payments–Controller of the reports regarding to the consistency with the tasks agreed–Collects the reports for the Commision and reports to the Commission about the distribution of the fundings to the partners of the Consortium



Explanation of the term „beneficiary“

•Every possible legal person (companies, SMEs, univeristies, public bodies, associations, private persons etc.)

•All beneficiaries of a FP7 project are contractors with the European Commission

•Coordinator has the same rights as the other partners but more obligations (duties) against the Commission

•Subcontractors: third parties listed in (Art.II.7) and in Annex I with predefined tasks



•Tasks of the beneficiary (partner) - Art.II.2.4

•Perfoms the project collectively with the other members of the consortium facing the EU Commission and undertakes the measures necessary

•Is obliged to provide the EU Commission with relevant informations and data when requested

•Is obliged to negotiate and sign a Consortium Agreement (CA) together with the other partners



Regulations concerning Intellectual Property Rights (IPR)

•Continuity with the 6th Framework Programme as far as possible•Improvement of the explanation and clearance of the regulations•Simplification according the information duties against the EU Commission concerning

–Publications–Assignments of patent rights

•AIM: Improvement of the implementation of the project as well as the dissemination and use of the project´s results and more autonomy for the partners of the consortium



Intellectual Property Rights and regulations for access

•Permission of access rights after written application

•Consideration of the access rights of all the other partners of the consortium

•Obligation for information of all other partners when access rights will be granted or restricted

•In case of termination of one partner he is obliged to continously grant access to IPR necessary for the continuation of the project by the other partners



Intellectual Property Rights and regulations for access

All partners have the right to access to foreground and background knowledge but only if it is necessary for the

implementation of the project and for the use and dissemination of the OWN new knowledge (foreground)


Access rights in the grant agreement

Access rights to background knowledge

Access rights to foreground knowledge

For the implemetation of the project

Access rights have to be granted when necessary for the implementation of the Project

Free of charge if not agreed differently before

Free of charge

For the use of foreground knowledge

Access rights have to be granted when necessary for the use of own foreground knowledge

Free of charge or under usual market conditions


Consortium Agreement (CA)

•All projects and partners have to sign a CA unless there are different regulations listed in the call•The CA describes the rights and obligations amongst the partners•The CA will be the first deliverable of the project („time-to-contract“ should be shortened)•The structure of the CA is free and up to the decision of the consortium•The EU Commission will publish a model CA named DESCA (Development of a Simplified Consortium Agreement)•DESCA recently is available as „final draft“ Version 0.9; Final version will be available as soon as the Commission publishes the final model grant agreement •Download of actual commented DESCA under www.DESCA-fp7.eu



Content:1.) Definitions2.) Purpose3.) Entry into force, duration and termination4.) Responsibilities of the parties5.)Liability towards each other6.)Governance structure7.)Financial provisions8.) Intellectual property rights, ownership and access rights9.) Dissemination10.) Non-disclosure of information11.) Miscellaneous12.) SignaturesAnnexes: for example list of know-how, Accession forms etc.



Section 6.) Governance structure: Description of the project management

–6.1: General structure–6.2: General operational procedures

•6.2.1 Representation in meetings•6.2.2 Preparation and organisation of meetings•6.2.3 Voting rules and quorum•6.2.4 Veto Rights•6.2.5 Minutes of meetings

–6.3: Specific operational procedures•6.3.1 General Assembly

–6.3.1.1 Members–6.3.1.2 Decisions

•6.3.2 Executive Board–6.3.2.1 Members–6.3.2.2 Minutes of meetings–6.3.2.3 Tasks



•6.3.3 Sub Project Committees–6.3.3.1 Members–6.3.3.2 Tasks–6.3.3.3 Sub Project Leader

–6.4 Coordinator–6.5 Management support team


Legal Framework - comprehensive overview

Rules for participation

European Commission

Contract (FP6)

Grant Agreement (FP7)

Rights and obligations of the consortium against the EU

Commission

Consortium Agreement

Rights and obligations between the partners


Thank you very much for your attention!

Questions and discussion

FP7 Legal Aspects (March 2007)

Business

project regulations

project duration

project annex i participants

annex iv form

financial contribution

project organisation

new rules

financial issues