Rompre avec le pass

1
Legal Framework
EC TREATY
INTERNATIONAL AGREEMENTS
PARTICIPATION AND DISSEMINATION RULES
FRAMEWORK PROGRAMME
CONTRACTS
SPECIFIC PROGRAMMES
GUIDELINES ON EVALUATION AND SELECTION
PROCEDURES
Other relevant EC Regulations FINANCIAL
REGULATION
WORK PROGRAMMES
Calls for proposals
2
Guidelines

• Will provide supplementary information and
  guidance notes
• Financial guidelines
• Negotiation guidelines
• Consortium agreement guidelines
• Project management guidelines

3
General Principles

• Reflect requirements of the Legal Framework
• Simplification
• No different categories of contractors
• Reduction of the number of contracts
• Collective approach
• Greater flexibility
• the Work Programme may adjust Rules
• flexibility in the composition and changes to
  consortium
• Greater autonomy for participants

4
The instruments

• RULES APPLIES TO ALL
• Integrated Projects new
• Networks of excellence new
• Specific targeted research or innovation projects
• Specific research projects for SMEs
• Co-operative research projects
• Collective research projects new
• Integrated infrastructure initiatives new
• Actions to promote human resources and mobility
  (Some are new)
• Co-ordination actions
• Specific support actions
• Article 169 new (specific rules to this
  instruments)

5
Contract Structure

• Core contract (standard with specifics of
  project)
• Annex I (technical tasks - the project)
• Annex II General Conditions
• (applicable to every instrument)
• Annex III Instrument specific provisions
  (specific to instrument)

6
Contract Structure

• Annex IV - Form A
• Consent of contractors identified in the
  core-contract (article 1.2) to accede to the
  contract. To be signed by the contractor
  concerned and by the coordinator.
• Annex V - Form B
• Accession of new legal entities to the contract.
  To be signed by the new contractor concerned
  and by the coordinator
• Annex VI - Form C
• Financial statement per activity. Specific to
  each Instrument and/or type of action. To be
  filled periodically by each contractor

7
Participation

• New Every legal entity that contributes to the
  project (incl. Project Managers)
• General Rule Participant contractor
• Every legal entity contributing to a project
  must have a contractual link with the Community
• Exceptional cases subject to very restrictive
  rules
• Third parties identified in Annex I
• Subcontractors

8
Participation

• Third parties identified in Annex I
• In most of the cases they do not participate,
  they simply make their resources available to a
  contractor, this is not a case of participation
  but only a question of eligibility of the cost
  of these resources
• In exceptional cases participation of
  members of entities such as EEIG,UMR, SMEs
  Associations
• these entities are contractors (EEIG, UMR)
• their members can do some of the work on the
  project even though they are third parties
• contractor and third parties must have a previous
  agreement, normally the constitution
• the third parties, the agreement and the tasks
  must be identified in Annex I

9
Participation

• Subcontracting
• Contractors shall ensure that the work to be
  performed can be carried out by them.
• Exception where it is necessary to subcontract
  certain elements of the work, this should be
  clearly identified in Annex I.
• Minor services may be subcontracted
• which do not represent core elements of the
  project
• which cannot be directly assumed by contractors
• where necessary for the performance of the project

10
Signature and entry into force

• Contractual link of all contractors with the
  Commission
• New Contract enters into force upon signature
  of coordinator and Commission
• All the contractors are identified in the core
  contract Art. 1.2
• Coordinator must ensure other contractors sign
  within delays
• Distribution of advance - Several options
  available minimum number of participants/all
  participants
• Evolution of consortium possible
• where one or more does not sign the Form A
  article 2
• in case of enlargement (new contractors)
  article 3
• Project begins in the date established in the
  contract (this can be before the contract enters
  into force but usually later)

11
Amendments

• Art.10 of Core Contract Art.8 of Annex II
• Request in writing
• New at the request of the coordinator, deemed to
  act on behalf of the consortium
• New Tacit amendments with implicit agreement of
  the Commission within 6 weeks only for
  modification and evolution of the consortium and
  for technical reports
• New in IP/NoE, enlargement of the consortium to
  new contractors and new activities may be
  foreseen. This enlargement follows a competitive
  call launched by the consortium with evaluation
  of proposals by external experts

12
Financing what ?

• Community Financial Contribution
• (Arts 5 and II.24)
• Based on activities Articles II.2 and II.25
• Based on costs Articles II.19, II.20 and II.21
• Based on costs reporting models Art II.22
• Confirmed by an audit certificate Art II.26

13
Financing
Grant for integration
Grant to the budget
Flat-rate
Networks of excellence ? Integrated Projects
? Specific targeted research projects
? Specific research projects for
SMEs ? Integrated initiatives relating to
infrastructure ? Actions to promote human
resources mobility ? ? Coordination actions
? Specific support actions ? ?
14
Financing
Type of activity (a) Research and technological
development (including innovation related
activity) Demonstration Training Other specific
support activities New Consortium Management
costs reimbursed up to 100 within the limit of
7 of Community contribution (AC contractors
apply FCF)
15
Financing
Type of activity (b)
16
Financing

• Costs
• New principles
• 1 - cost categories are replaced by conformity to
  contractors own accounting rules and legal
  environment
• 2 - simplify the eligibility criteria
• 3 - focus resources on the reality and the
  necessity of the cost, rather than on formality
  (cost categories)
• Therefore, costs must be
• actual, economic and necessary for the project
• incurred during the duration of the project
  (exception costs of the final reports)
• recorded in the accounts (or third parties)
• and must exclude indirect taxes, duties,
  interests, costs reimbursed in respect of another
  Community project, and not give rise to profit

17
Financing

• Cost Reporting Models
• FC actual direct and indirect costs (not
  available for Coordination Actions and Specific
  Support Actions)
• New FCF (variant of FC) actual direct costs
  flat rate for indirect costs (20 of total actual
  direct costs, except costs of subcontracts - all
  instruments)
• AC actual additional direct costs flat rate
  for indirect costs (20 of total actual
  additional direct costs, except costs of
  subcontracts - all instruments)

18
Financing

• SMEs, non- commercial or non-profit
  organisations established either under public or
  private law, international organisations FC/FCF
• Physical persons AC mandatory
• Private companies (other than above) FC
• AC only for those non- commercial or non-profit
  organisations established either under public or
  private law or international organisations that
  do not have an accounting system that allows the
  share of their direct and indirect costs relating
  to the project to be distinguished.
• General Rule a legal entity applies the same
  cost model in ALL contracts established under FP6
  except may move from AC to FCF/FC or from FCF to
  FC (one way ticket)

19
Financing

• Costs under FC/FCF
• Direct costs must be eligible costs that can be
  related directly to the project
• Indirect costs must be
• for FC eligible costs determined by the
  contractor, in accordance with its usual
  accounting practices and the definition of
  indirect costs article II.21
• for FCF a flat rate is applied to the direct
  costs to cover indirect costs.

20
Financing

• Costs under AC
• Direct additional costs must be direct costs
  additional to the normal recurring costs of the
  contractor and not covered by any other sources
  of funding.Three possibilities of charging costs
  related to personnel
• personnel with a temporary contract to complete a
  doctorate 
• personnel with a temporary contract for working
  under the Community contract concerned 
• personnel whose employment contract depends full
  or in part on additional external financing.
• Indirect costs consist of a flat rate applied to
  the direct costs.

21
Financing

• Receipts
• Three kinds of receipts must be taken into
  consideration in order to avoid any possibility
  of profit
• Financial transfers or their equivalent to the
  contractor from third parties 
• Contributions in kind from third parties
• Income generated by the project.
• In the first two cases (financial transfers or
  contributions in kind), these endowments are
  considered as receipts of the project if the
  third party has provided them specifically to be
  used in the project.
• If, on the other hand, these endowments are at
  the discretion of the contractor they are not to
  be considered as receipts.

22
Financing

• Receipts
• In the first two cases, where contributions from
  third parties are used for the project by the
  contractor, the latter is required to inform the
  third party of this use and in accordance with
  the national legislation or practice in force.
• In the case of income generated by the project
  itself
• General rule any income generated by the project
  itself, including the sale of assets bought for
  the project, are considered as income to the
  project (receipts)
• Derogation income generated by the use of the
  knowledge resulting from the project is not
  considered as a receipt

23
Financing

• Reports and deliverables
• All reports and deliverables shall be submitted
  within 45 days of the end of the period in
  question.
• The project is divided into reporting periods of
  12 months for IP and NOE
• For other instruments, reporting periods are
  established on an ad hoc basis in the contract
• P1 from month 1 to month X
• P2 from month X1 to month Y
• P3 from month Y1 to month Z
• final from month N1 to the last month of the
  project

24
Financing

• Reports and deliverables
• The consortium will submit the following reports
  to the Commission
• For each reporting period
• a periodic activity report
• a periodic management report
• a report on the distribution between contractors
• supplementary reports required by Annex to this
  contract
• an audit certificate when required

25
Financing

• Reports and Deliverables
• In addition to the periodic reports of the last
  period, for the last period
• a final activity report
• a final management report
• supplementary reports required by Annex to this
  contract
• a report on the distribution between contractors
  made after the end of the project of the
  Community financial contribution - shall be 60
  days after receipt of the final tranche

26
Financing

• Audit certificates
• Article II.26
• each contractor shall provide an audit
  certificate prepared and certified by an external
  auditor (for public bodies - competent public
  officer)
• for each period for which an audit certificate is
  required (article 7 - option 2)
• every 12 months for IP/NoE (article 7 - option 1)
• where requesting a Community financial
  contribution exceeding 750.000 for a specific
  reporting period, even though an audit
  certificate is not required for this specific
  period

27
Financing how ?

• Payment Modalities
• Periodic pre-financing (based on the applicable
  periodicity)
• The Community financial contribution is paid to
  the coordinator on behalf of the contractors the
  consortium decides on the allocation of each
  tranche of its between the contractors
  (consortium agreement)

28
Financing

• Payment modalities
• The Community financial contribution shall be
  paid in accordance with the provisions of Article
  8 and II.28. Differences between
• 1 one single reporting period
• 2 several reporting periods
• - with an audit certificate for each period
  
• - without an audit certificate for each period
• 3 one single reporting period - lump sum

29
Payments and reporting schedule for an
IP(example of a 4 year contract)
Activity report
Reported costs
Activity report
Detailed work plan
Reported costs
Adjusted advance
Activity report
Detailed work plan
Reported costs
Adjusted advance
Activity report
Detailed work plan
Reported costs
Adjusted advance
Detailed work plan
Initial advance
0 6 12
18 24 30
36 42 48

Months
30
Payments and reporting schedule for a STREP, CA
or SSA(example of a 3 year contract)
Final activity report
Final payment
Reported costs audit certificate (mandatory)
Intermediate pre-financing or payment NB
impact on the total pre-financing
Periodic activity report (mid-term review
optional)
Reported costs (audit certificate if required)
Detailed work plan
Initial advance
0 6 12 14
18 20 24 26 30
36 38

Months
31
LIABILITY (1)

• New Collective responsibility of the contractors
• Mechanism by which a contractor may be held
  liable, technically and/or financially, fully or
  partially, for the action of another contractor
• Why?
• Reinforce the protection of the financial
  interests of the Community, both quantitative
  (only pay what is due to be paid) and qualitative
  (ensure that the project continues)
• Consequence of FP6 principle of autonomy of the
  consortium if the money is granted to the
  consortium, which decides on its allocation, then
  the consortium as a whole is to be held liable

32
LIABILITY (2)

• Implementation applied as a last resort
• Breach of contract
• Depending on the nature of the breach, the
  consortium will be invited to find the
  appropriate solution (technical responsibility)
• If no solution is found, the defaulting
  contractor is excluded and the consortium is
  requested to continue the project (technical
  responsibility with financial consequences)
• If the consortium refuses to perform
• 1 - the contract is terminated
• 2 - the consortium is requested to reimburse
  money owed by the defaulting contractor
  (collective financial responsibility)

33
LIABILITY (3)

• Implementation limitations
• Limited in proportion to the participants share
  of costs in the project, up to the total payment
  they are entitled to receive
• IOs, public bodies or entities guaranteed by
  MS/AS solely responsible for their own debts
• Exceptions for specific actions for SMEs,
  fellowships, duly justified cases of specific
  support actions
• Without prejudice to civil and criminal actions
  to be launched against the defaulting contractor

34
LIABILITY (4)

• Additional impacts
• Raises awareness among contractors
• 1 - constitution of the consortium
• 2 - projects with real and lasting common
  interests (avoid artificial transnational
  projects)
• 3 - establishment of internal auto-controls and
  checks and balances within the consortium
• Limits systematic requests for bank guarantees
  and performance of ex-ante financial controls
• 1 - as foreseen in the new financial regulations
• 2 - depending on the impact of the limitations
  (risk assessment - to be detailed in Guidelines
  on negotiations)

35
Controls (1)
reinforce scientific monitoring and ex-post
financial controls Simplified and streamlined
ex-ante controls due to the collective
responsibility Simplified and streamlined
day-to-day financial management due to the audit
certificates and the new approach on eligible
costs (no more formal conformity with cost
categories) Reorient resources in qualitative
monitoring and control 1 - assessment of the
scientific outputs 2 - appraisal of the necessity
of the costs with regards to these outputs
36
Controls (2)

• How?
• New continuous monitoring by Commission with
  external experts (mandatory for IP and NoE),
  based on simplified procedures (no public
  procurement)
• Newperiodical reviews of results achieved and
  expenditure made - go/no-go procedure (12 months
  basis for IP NoE - ad hoc for other
  instruments)
• Technical (incl. ethical), technological, and
  financial audits

37
Sanctions

• Autonomy implies accountability
• New in case of irregularity in a contract...
• 1 - exclusion from the contract
• 2 - exclusion from OTHER FP6 contracts, and from
  other Community policies
• 3 - ineligible to participate in FP6 activities,
  and from other Community policies
• New liquidated damages in case of financial
  overstatement
• Without prejudice to civil and criminal sanctions

38
Intellectual Property Rights (IPR)

• Developed on the basis of
• Feedback from FP5
• Features of the new instruments
• contractors may leave/join during the project
• larger projects

39
Principles

• Consistency with FP5 (similar concepts)
• Simplification
• ? New Same IPR rules for ? all instruments
  (fewer exceptions)
• ? New Same IPR rules for all contractors
• Increased certainty, in particular regarding
  access rights (restricted to what is necessary)
• Increased emphasis on the management of knowledge
  and IP (especially new instruments)

40
General Concepts

• Definitions no major change compared to FP5
• knowledge, pre-existing know-how, use,
  dissemination, ...
• Ownership no major changes compared to FP5
• resides with the contractor (incl. JRC)
  generating knowledge
• exception for SME actions cooperative research
  - SMEs own results not the RTD Performers
• collective research - SME associations own
  results
• transfer of ownership prior notice to other
  participants Commission (possible objection
  within 30 days)
• public procurement (Commission owns results)

41
General Concepts -

• Protection
• Where there is commercial application and subject
  to legitimate interests, it is a requirement to
  protect
• Where there is no protection, Commission may
  protect
• Publication
• allowed if not detrimental to protection
• prior notice to Commission other contractors
  (possible objection within 30 days)
• Use / dissemination
• Obligation to use and disseminate
• Commission may disseminate itself if needed

42
Access Rights

• General principles
• New Granted on written request, access rights for
  use of anothers results only where necessary
  (not by right)
• No sub-licensing (unless explicitly agreed
  possible optional clause for software)
• Obligatory Access Rights between contractors
  limited to what they really need (either for
  carrying out the project or for using their own
  knowledge) but broader Access Rights may be
  freely negotiated
• Access Rights granted to third parties
  Commission may object

43
Access Rights

• New features
• Feedback from FP5 need for pre-existing know-how
  (Pre-Existing Know How ) to be better safeguarded
• New Possibility for a contractor to exclude
  specific Pre-Existing Know How from the
  obligation to grant Access Rights to the others
• with the agreement of all participants
• before the contractor concerned signs the
  contract (or before entry of a new contractor)

44
FP6 System of Access Rights
Access rights to
Access rights to
pre-existing know-how
knowledge
If a contractor needs them for carrying out its
own work under the project
For carrying out the project
Royalty-free unless otherwise agreed before
signing the contract
Royalty-free
If a contractor needs them for using its own
knowledge
For use (exploitation further research)
Non-discriminatory conditions to be agreed
Royalty-free unless otherwise agreed before
signing the contract
Possibility for participants to agree on
exclusion of specific pre-existing know-how
before signature of the contract (or before
entry of a new participant)
45
Consortium Agreement

• WHY ? (1)
• 1 - Mandatory unless excluded by the call for
  proposals
• 2 - Management of the consortium
• distribution of funds paid to the consortium (via
  the coordinator)
• no automatic pre-allocation of the funds among
  contractors to be decided by the consortium
• evolution of the work programme
• organisation of work to be carried out
  (sub-projects)
• reports presented and submitted by the consortium
  (via the coordinator)
• evolution of the consortiums composition
  (modification)

46
Consortium Agreement

• WHY ? (2)
• 3 - IPR issues should be agreed before signature
  of the contract (mandatory for specific
  Pre-Existing Know How exclusion)
• 4 - Global Risk Management collective
  responsibility
• technical implementation of the action
  collective responsibility of the contractors
• consortium to deal with breach of contract /
  non-performance and imposition of financial
  collective responsibility and any financial
  security necessary for same

47
Consortium Agreement

• Issues
• Decision-making process
• governance may range from 1 participant, 1
  vote to elective dictatorship, via the
  shareholder approach
• IPR
• - ensure that agreements necessary for the
  implementation of the project have been reached -
  exclusion of background/sideground
• - initiate common strategy on dissemination/use/p
  rotection search for industrial partners
• Global Risk Management
• - establish internal auto-control and a checks
  and balances mechanism (periodic distribution of
  the funds, progress reporting, etc).
• - specific issues regarding competitive calls,
  costs less than EC funding etc for specific
  instruments