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Legal Aspects in FP 7

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.

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Legal Aspects in FP 7

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  1. Legal Aspects in FP 7 Nicole Schröder, LL.M. INCO-NET MIRA - Training Seminar for Palestine Information Point in Cyprus

  2. Content • Documents in FP 7 • Participation • Grant Negotiation • Grant Agreement • Consortium Agreement

  3. 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

  4. Hierarchy of norms Documents for the implementation of FP 7 projects

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

  6. Grant Agreement (binding texts)

  7. Guidelines (non binding)

  8. 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

  9. Participation • At least 3 independent legal entities from 3 different countries Guide for Applicants

  10. 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

  11. 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

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

  13. ICPC - International Cooperation Partner Countries

  14. URF- Unique Registration Facility

  15. URF- Unique Registration Facility

  16. URF- Unique Registration Facility

  17. Validation European Commission Research Directorate-GeneralT5 Framework programme logistics - URF Validation Team SDME 11/083 B-1049 BrusselsBelgium Mail: RTD-URF-VALIDATION@ec.europa.eu http://cordis.europa.eu/fp7/urf-valid_en.html

  18. 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

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

  20. Grant Agreement Negotiations

  21. Coordinator Grant Agreement Relation: Commission and consortium Partner Partner Partner Partner Partner      Third Parties

  22. 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

  23. 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

  24. Indicates: • clarifications and changes to be made to the project (Based on the ESR) • maximum ECContribution • 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) Negotiation Mandate

  25. 1 – Technical Negotiations 2 – Legal and Financial Negotiations The two are essentially linked Two Negotiation Stages

  26. 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. 1 - Technical Negotiations

  27. 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) Deliverables

  28. 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 2. Legal & Financial Negotiations

  29. 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 The GPFs- The Grant Agreement Preparation Forms

  30. 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

  31. Coordinator Grant Agreement Relation: Commission and consortium Partner Partner Partner Partner Partner      Third Parties

  32. Grant Agreement • 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

  33. 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

  34. 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)

  35. 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

  36. Grant Agreement – Core Contract

  37. Grant Agreement – Annex II General Conditions

  38. Grant Agreement • Financial provisions • Total EU-contribution • Payment modalities • Upper funding limits • Indirect costs • Certificates • Third parties • No financial collective responsibility • Other provisions • Reporting

  39. Coordinator Consortium Agreement Relation: between the partners in the consortium Partner Partner Partner Partner Partner      Third Parties

  40. Consortium Agreement • 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)

  41. 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

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

  43. Konsortialvertrag (KV)Beispiel: DESCA-Konsortialvertragsmodell General Structure GENERAL ISSUES GOVERNANCE Liability Decision making Responsibilities Consortium Bodies Budgeting Payments Access Rights Dissemination IPR FINANCE

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

  45. Intellectual Property Rights – Who is the owner of the results • IPR Definitions • IPR Provisions • Access Rights

  46. 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

  47. 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)

  48. 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

  49. 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

  50. Access rights (FP7)

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