Version 20.12.06 ISC clean
Ref. Ares(2012)1389824 - 23/11/2012
FP7 Grant Agreement - Annex II General Conditions
II.1.
Definitions ................................................................................................................2
Part A
IMPLEMENTATION OF THE
PROJECT....................................................................3
SECTION 1 – GENERAL PRINCIPLES..................................................................................3
II.2.
Organisation of the
consortium and role of
coordinator.............................................3
II.3.
Specific performance obligations of each
beneficiary ................................................4
SECTION 2 – REPORTING AND PAYMENTS .....................................................................6
II.4.
Reports and deliverables............................................................................................6
II.5.
Approval of reports and deliverables, time-limit for payments...................................8
II.6.
Payment modalities ...................................................................................................9
SECTION 3 – IMPLEMENTATION......................................................................................10
II.7.
Subcontracting ........................................................................................................10
II.8.
Suspension of the
project ........................................................................................11
II.9.
Confidentiality and
classified information ...............................................................11
II.10.
Communication of data for evaluation, impact assessment and standardisation
purposes 12
II.11.
Information to be provided to Member States or Associated Countries ................13
II.12.
Information and communication ..........................................................................13
II.13.
Processing of personal data..................................................................................14
Part B
FINANCIAL PROVISIONS .......................................................................................14
SECTION 1 – GENERAL FINANCIAL PROVISIONS.........................................................14
II.14.
Eligible costs of the
project .................................................................................14
II.15.
Identification of direct and indirect costs .............................................................15
II.16.
Upper funding limits............................................................................................ 17
II.17.
Receipts of the
project.........................................................................................18
II.18.
Community financial contribution .......................................................................18
II.19.
Interest yielded by pre-financing provided by the
Commission ............................ 19
SECTION 2 – GUARANTEE FUND .....................................................................................19
II.20.
Financial responsibility........................................................................................19
II.21.
Guarantee fund ....................................................................................................19
SECTION 3 – CONTROLS, RECOVERIES AND SANCTIONS ..........................................21
II.22.
Financial audits and controls ...............................................................................21
II.23.
Technical reviews................................................................................................ 22
II.24.
Liquidated damages and financial penalties .........................................................23
A. Liquidated damages ....................................................................................................23
B. Financial penalties.......................................................................................................24
II.25.
Reimbursement to the
Commission and recovery orders ......................................24
Part C
INTELLECTUAL PROPERTY RIGHTS,
USE AND
DISSEMINATION....................25
SECTION 1 –
FOREGROUND .............................................................................................. 25
II.26.
Ownership ...........................................................................................................25
II.27.
Transfer...............................................................................................................25
II.28.
Protection ............................................................................................................26
II.29.
Use......................................................................................................................27
II.30.
Dissemination......................................................................................................27
SECTION 2 –
ACCESS RIGHTS ............................................................................................ 28
II.31.
Background covered ............................................................................................ 28
II.32.
Principles ............................................................................................................28
II.33.
Access rights for implementation .........................................................................29
II.34.
Access rights for
use............................................................................................ 29
FINAL PROVISIONS ................................................................................................................30
II.35.
Requests for amendments and termination at the initiative of the
consortium.......30
1
Version 20.12.06 ISC clean
II.36.
Approval of amendments and termination requested by the
consortium ...............31
II.37.
Competitive calls .................................................................................................32
II.38.
Termination of the
grant agreement or of the participation of one or more
beneficiaries at the
Commission’s initiative.........................................................................32
II.39.
Financial contribution after termination and other termination consequences .......34
II.40.
Force majeure......................................................................................................35
II.41.
Assignment .........................................................................................................35
II.42.
Liability...............................................................................................................35
II.1. Definitions
1. "
access rights" means licences and user rights to
foreground or
background;
2. "
affiliated entity" means any legal entity that is under the direct or indirect control of a
beneficiary, or under the same direct or indirect control as the
beneficiary, control taking any
of the following forms:
(a) the direct or indirect holding of more than 50% of the nominal value of the issued share
capital in the legal entity concerned, or of a majority of the voting rights of the shareholders or
associates of that entity;
(b) the direct or indirect holding, in fact or in law, of decision-making powers in the legal
entity concerned.
3. "
associated country" means a
third country which is party to an international agreement with
the
Community, under the terms or on the basis of which it makes a financial contribution to
all or part of the Seventh Framework Programme;
4. "
background" means information which is held by
beneficiaries prior to their accession to this
agreement, as well as copyrights or other intellectual property rights pertaining to such
information, the application for which has been filed before their accession to this agreement,
and which is needed for carrying out the
project or for using
foreground;
5. "
dissemination" means the disclosure of
foreground by any appropriate means other than that
resulting from the formalities for protecting it, and including the publication of
foreground in
any medium;
6. "
fair and reasonable conditions" means appropriate conditions including possible financial
terms taking into account the specific circumstances of the request for access, for example the
actual or potential value of the
foreground or
background to which access is requested and/or
the scope, duration or other characteristics of the
use envisaged;
7. "
foreground" means the results, including information, whether or not they can be protected,
which are generated under the
project. Such results include rights related to copyright; design
rights; patent rights; plant variety rights; or similar forms of protection;
8. "
use" means the direct or indirect utilisation of
foreground in further research activities other
than those covered by the
project, or for developing, creating and marketing a product or
process, or for creating and providing a service;
9. "
third country" means a State that is not a Member State;
2
Version 20.12.06 ISC clean
10. "
irregularity" means any infringement of a provision of
Community law or any breach of
obligation resulting from an act or omission by a
beneficiary which has, or would have, the
effect of prejudicing the general budget of the European Communities or budgets managed by
them through unjustified expenditure;
11. "
public body" means any legal entity established as such by national law, and international
organisations;
12. A "
non-profit" legal entity is qualified as such when recognised by national or international
law;
13. "
research organisation " means a legal entity established as a
non-profit organisation which
carries out research or technological development as one of its main objectives;
14. "
SMEs" mean micro, small and medium-sized enterprises within the meaning of
Recommendation 2003/361/EC in the version of 6 May 2003;
Part A
IMPLEMENTATION OF THE
PROJECT
SECTION 1 – GENERAL PRINCIPLES
II.2. Organisation of the consortium and role of coordinator
1. All the
beneficiaries together form the
consortium, whether or not they enter into a separate
written
consortium agreement.
Beneficiaries are represented towards the
Commission by the
coordinator, who shall be the intermediary for any communication between the
Commission and any
beneficiary, with the exceptions foreseen in this
grant agreement.
2. The
Community financial contribution to the
project shall be paid to the
coordinator who
receives it on behalf of the
beneficiaries. The payment of the
Community financial
contribution to the
coordinator discharges the
Commission from its obligation on payments.
3.The
coordinator shall:
a)
administer the
Community contribution regarding its allocation between
beneficiaries
and activities, in accordance with this
grant agreement and the decisions taken by the
consortium. The
coordinator shall ensure that all the appropriate payments are made to
the other
beneficiaries without unjustified delay;
b)
keep the records and financial accounts making it possible to determine at any time
what portion of the
Community financial contribution has been paid to each
beneficiary for the purposes of the
project;
c)
inform the
Commission of the distribution of the
Community financial contribution and
the date of transfers to the
beneficiaries, when required by this
grant agreement or by
the
Commission;
d)
review the reports to verify consistency with the
project tasks before transmitting them
to the
Commission;
e)
monitor the compliance by
beneficiaries with their obligations under this
grant
agreement.
3
Version 20.12.06 ISC clean
The
coordinator may not subcontract the above-mentioned tasks.
4.
Beneficiaries shall fulfil the following obligations as a
consortium:
a)
provide all detailed data requested by the
Commission for the purposes of the proper
administration of this
project;
b)
carry out the
project jointly and severally vis-à-vis the
Community, taking all necessary
and reasonable measures to ensure that the
project is carried out in accordance with the
terms and conditions of this
grant agreement.
c)
make appropriate internal arrangements consistent with the provisions of this
grant
agreement to ensure the efficient implementation of the
project. When provided for in
Article 1.4 these internal arrangements shall take the form of a written
consortium
agreement (the "
consortium agreement"). The
consortium agreement governs
inter alia the following:
i. the internal organisation of the
consortium including the decision making
procedures;
ii. rules on
dissemination and
use, and
access rights;
iii. the distribution of the
Community financial contribution;
iv. the settlement of internal disputes, including cases of abuse of power;
v. liability, indemnification and confidentiality arrangements between the
beneficiaries.
d)
engage, whenever appropriate, with actors beyond the research community and with the
public in order to foster dialogue and debate on the research agenda, on research results
and on related scientific issues with policy makers and civil society; create synergies
with education at all levels and conduct activities promoting the socioeconomic impact
of the research.
e)
allow the
Commission to take part in meetings concerning the
project.
II.3. Specific performance obligations of each beneficiary
Each
beneficiary shall:
a) carry out the work to be performed, as identified in Annex I. However, where it is
necessary for the implementation of the
project it may call upon third parties to carry out
certain elements, according to the conditions established in Article II.7 or any special
clause in Article 7. The
beneficiary may use resources that are made available by third
parties in order to carry out its part of the work;
b) ensure that any agreement or contract entered into between the
beneficiary and any third
party contain provisions that this third party, including the auditor providing the
certification of costs or on the methodology, shall have no rights in respect of the
Commission under this
grant agreement;
c) ensure that the rights of the
Commission and the
Court of Auditors to carry out audits are
extended to the right to carry out any such audit or control on any third party whose costs
are reimbursed in full or in part by the
Community financial contribution, on the same
terms and conditions as those indicated in this
grant agreement;
4
Version 20.12.06 ISC clean
d) ensure that the conditions applicable to it under Articles II.10, II.11, II.12, II.13 and II.22
are also applicable to any third party whose costs are claimed under the
project according
to the provisions of this
grant agreement;
e) ensure that the tasks assigned to it are correctly and timely performed;
f) inform the other
beneficiaries and the
Commission through the
coordinator in due time
of:
• the names of the person(s) who shall manage and monitor its work, and its
contact details as well as any changes to that information;
• any event which might affect the implementation of the
project and the rights of
the
Community;
• any change in its legal name, address and of its legal representatives, and any
change with regard to its legal, financial, organisational or technical situation
including change of control and, in particular, any change of status as regards
non-profit public bodies, secondary and higher education establishments,
research organisations and
SMEs;
• any circumstance affecting the conditions of participation referred to in the
Rules
for Participation, the
Financial Regulation and its implementing rules or of any
requirements of the
grant agreement, especially if and when any eligibility
criteria cease(s) to be met during the duration of the
project.
g) provide the
Commission and Court of Auditors directly with all information requested in
the framework of controls and audits;
h) take part in meetings concerning the supervision, monitoring and evaluation of the
project which are relevant to it;
i) take all necessary steps to avoid commitments that are incompatible with the obligations
provided for in this
grant agreement and inform the other
beneficiaries and the
Commission of any unavoidable obligations which may arise during the duration of the
grant agreement which may have implications for any of its obligations under the
grant
agreement;
j) ensure that they comply with the provisions of the State aid framework;
k) carry out the
project in accordance with fundamental ethical principles;
l) endeavour to promote equal opportunities between men and women in the
implementation of the
project;
m) have regard to the general principles of the Commission Recommendation of 11 March
2005 on the European Charter for Researchers and the Code of Conduct for the
Recruitment of Researchers, in particular concerning the working conditions,
transparency of recruitment processes, and career development of the researchers
recruited for the
project;
n) take every necessary precaution to avoid any risk of conflict of interest relating to
economic interests, political or national affinities, family or emotional ties or any other
interests liable to influence the impartial and objective performance of the
project.
5
Version 20.12.06 ISC clean
SECTION 2 – REPORTING AND PAYMENTS
II.4. Reports and deliverables
1.
The
consortium shall submit a
periodic report to the
Commission for each reporting period
within 60 days after the end of each respective period. The reporting shall comprise:
a) an overview, including a publishable summary, of the progress of work towards the
objectives of the
project, including achievements and attainment of any milestones and
deliverables identified in Annex I. This report should include the differences between
work expected to be carried out in accordance with Annex I and that actually carried out,
b) an explanation of the use of the resources, and
c) a financial statement (Form C - Annex VI), from each
beneficiary together with a
summary financial report consolidating the claimed
Community contribution of all the
beneficiaries in an aggregate form, based on the information provided in Form C by each
beneficiary.
2. The
consortium shall submit a
final report to the
Commission within 60 days after the end of
the
project. The report shall comprise:
a) a final publishable summary report covering results, conclusions and socio-
economic impact of the
project.
b) a report covering the wider societal implications of the
project, including gender
equality actions, ethical issues, efforts to involve other actors and spread awareness as well
as the plan for the
use and
dissemination of
foreground.
3.
The
coordinator shall submit a report on the distribution of the
Community financial
contribution between
beneficiaries. This report must be submitted 30 days after receipt of
the final payment of the
Community financial contribution.
4.
A
certificate on the financial statements shall be submitted for claims of interim
payments and final payments when the amount of the
Community financial contribution claimed
by a
beneficiary under the form of reimbursement of costs is equal to or superior to € 375.000,
when cumulated with all previous payments for which a certificate on the financial statements has
not been submitted. This certificate must be forwarded in the form of a detailed description
verified as factual by its external auditor (Form D - Annex VII). However, for
projects of a
duration of 2 years or less, the certificate on the financial statements shall be submitted only for
claims on final payments when the amount of the
Community financial contribution claimed by a
beneficiary is equal to or superior to € 375.000 when cumulated with all previous payments.
The
Commission may, at its sole discretion, accept at the request of a
beneficiary, that it submits a
certificate on the methodology, which it used to prepare its claims with regard to both personnel
and overhead costs, and the related control systems. This certificate must be forwarded in the
form of a detailed description verified as factual by its external auditor (Form E - Annex VII).
When
this certificate is accepted by the
Commission, the requirement to provide an intermediate
certificate on the financial statements for claims of interim payments shall be waived.
Certificates on financial statements shall certify that the costs claimed and the
receipts declared
during the period for which it is provided, as well as the declaration of the interests yielded by the
pre-financing meet the conditions required by this
grant agreement. Where third parties’ costs
6
Version 20.12.06 ISC clean
are claimed under the
grant agreement, such costs shall be certified in accordance with the
provisions of this Article. The auditor shall include in its certification that no conflict of interest
exists between it and the
beneficiary in establishing this certificate.
Certificates on the financial statements and on the methodology shall be prepared and certified by
an external auditor and shall be established in accordance with the terms of reference attached as
Annex VII to this
grant agreement. Each
beneficiary is free to choose any qualified external
auditor, including its usual external auditor, provided that the cumulative following requirements
are met:
i) the auditor must be independent from the
beneficiary;
ii) the auditor must be qualified to carry out statutory audits of accounting documents in
accordance with national legislation implementing the 8th Council Directive on
statutory audits of annual account and consolidated accounts1 or any
Community legislation replacing this Directive.
Beneficiaries established in
third countries shall
comply with national regulations in the same field and the certificate on the financial
statement provided shall consist of an independent report of factual findings based
on procedures specified by the
Community.
Public bodies, secondary and higher education establishments and
research organisations may
opt for a competent public officer to provide their certificate on financial statements and on the
methodology, provided that the relevant national authorities have established the legal capacity of
that competent public officer to audit that entity and that the independence of that officer, in
particular regarding the preparation of the financial statements, can be ensured.
Certification by external auditors according to this Article does not affect the liability of
beneficiaries nor the rights of the
Community arising from this
grant agreement.
5. The
consortium shall transmit the reports and other deliverables through the
coordinator to the
Commission by electronic means. In addition, Form C, must be signed by the authorised person(s)
within the
beneficiary’s organisation, and the certificates on the financial statements and on the
methodology must be signed by an authorised person of the auditing entity, and the original shall
be sent to the
Commission.
5. The layout and content of the reports shall conform to the instructions and guidance notes
established by the
Commission.
6. The reports submitted to the
Commission for publication should be of a suitable quality to
enable direct publication and their submission to the
Commission in publishable form indicates
that no confidential material is included therein.
7. Deliverables identified in Annex I shall be submitted as foreseen therein.
8. The
Commission may be assisted by external experts in the analysis and evaluation of the
reports and deliverables.
1 Directive 2006/43/EC of the European Parliament and of the Council of 17 May 2006 on statutory audits of annual
accounts and consolidated accounts, amending Council Directives 78/660/EEC and 83/349/EEC and repealing
Council Directive 84/253/EEC
7
Version 20.12.06 ISC clean
II.5. Approval of reports and deliverables, time-limit for
payments
1.
The
Commission shall evaluate
project reports and deliverables required by the provisions
of Annex I and disburse the corresponding payments within 105 days of their receipt unless
the time-limit, the payment or the
project has been suspended.
2.
Payments shall be made after the
Commission'
s approval of reports and/or deliverables. The
absence of a response from the
Commission within this time-limit shall not imply its
approval. The
Commission may reject reports and deliverables even after the time-limit for
payment. Approval of the reports shall not imply recognition of their regularity or of the
authenticity of the declarations and information they contain and do not imply exemption
from any audit or review.
3.
After reception of the reports the
Commission may:
a) approve the reports and deliverables, in whole or in part or make the approval subject to
certain conditions.
b) reject the reports and deliverables by giving an appropriate justification and start the
procedure for termination of the
grant agreement in whole or in part.
c) suspend the
time limit if the reports or appropriate deliverables have not been supplied, or
are not complete or if some clarification or additional information is needed or there are
doubts concerning the eligibility of costs claimed in the financial statement and/or
additional checks are being conducted. The suspension will be lifted from the date when
the last report, deliverable or the additional information requested is received by the
Commission.
The
Commission shall inform the
consortium in writing via the
coordinator of any such
suspension and the conditions to be met for the lifting of the suspension.
Suspension shall take effect on the date when notice is sent by the
Commission.
d)
suspend
the payment at any time:
• if the work carried out does not comply with the provisions of the
grant
agreement;
• if a
beneficiary has to reimburse to its national state an amount unduly received as
state aid;
• if the provisions of the
grant agreement have been infringed or if there is a
suspicion thereof, in particular in the wake of any audits and checks carried out;
• if there is a suspicion of
irregularity committed by one or more
beneficiary(ies) in
the performance of the
grant agreement. Only the portion destined for the
beneficiary(ies) suspected of
irregularity will be suspended.
• if there is a suspected or established
irregularity committed by one or more
beneficiary(ies) in the performance of another
grant agreement funded by the
general budget of the European Communities or by budgets managed by them. In
such cases, suspension of the payments will occur where the
irregularity (or
suspected
irregularity) is of a serious and systematic nature which is likely to
affect the performance of the current
grant agreement.
8
Version 20.12.06 ISC clean
If the
Commission suspends the payment the
consortium shall be duly informed of the reasons
why payment in whole or in part will not be made.
4.
The
Commission may proceed with an interim payment in part if some reports or
deliverables are not submitted as required, or only partially or conditionally approved. The
reports and deliverables due for one reporting period which are submitted late will be evaluated
together with the reports and deliverables of the next reporting period.
5. On expiry of the time-limit for approval of the reports and payments, and without prejudice to
suspension by the
Commission of this time-limit, the
Commission shall pay interest on the late
payment at the rate applied by the European Central Bank for its main refinancing operations
in euros, plus three and a half points. The reference rate to which the increase applies shall be
the rate in force on the first day of the month of the final date for payment, as published in the
C series of the Official Journal of the European Union.
This provision shall not apply to
beneficiaries that are
public bodies of the Member States of
the European Union.
Interest on late payment shall cover the period from the final date of the period for payment,
exclusive, up to the date when the payment is debited to the
Commission's account, inclusive.
The interest shall not be treated as a
receipt for the
project for the purposes of determining the
final grant. Any such interest payment is not considered as part of the
Community financial
contribution.
6. The suspension of payment by the
Commission may not be considered as late payment.
7. At the end of the
project, the
Commission may decide not to make the payment of the
corresponding
Community financial contribution subject to one month's written notice of
non-receipt of a report, a certificate on the financial statement or other
project deliverable.
8. The
Commission shall inform the
coordinator of the amount of the final payment of the
Community financial contribution justifying this amount. The
coordinator shall have two
months from the date of receipt to give reasons for any disagreement. After the end of this
period such requests will no longer be considered and the
consortium is deemed to have
accepted the
Commission's decision. The
Commission undertakes to reply in writing within
two months following the date of receipt, giving reasons for its reply. This procedure is
without prejudice to the
beneficiary’s right to appeal against the
Commission’s decision.
II.6. Payment modalities
1. The
Commission shall make the following payments:
a. a pre-financing in accordance with Article 6,
b. for
projects with more than one reporting period, the
Commission shall make
interim
payments of the
Community financial contribution corresponding to the amount
accepted for each reporting period.
c. the
Commission shall make a
final payment of the
Community financial contribution
corresponding to the amount accepted for the last reporting period plus any adjustment
needed.
9
Version 20.12.06 ISC clean
Where the amount of the corresponding
Community financial contribution is less than
any amount already paid to the
consortium, the
Commission shall recover the
difference.
Where the amount of the corresponding
Community financial contribution is more
than any amount already paid to the
consortium, the
Commission shall pay the
difference as the final payment within the limit of Article 5.1.
2. The total amount of the pre-financing and interim payments shall not exceed 90% of the
maximum
Community financial contribution.
3. Payments by the
Commission shall be made in euros.
4. Costs incurred in currencies other than the Euro shall be reported in Euro, using for all costs,
either the conversion rate published by the European Central Bank that would have applied on
the date that the actual costs were incurred, or the rate applicable on the first day of the month
following the end of the reporting period.
5. The bank account mentioned in Article 5.4 shall allow that the
Community financial
contribution and related interest are identified. Otherwise, the accounting methods of the
beneficiaries or intermediaries must make it possible to identify the
Community financial
contribution and the interest or other benefits yielded.
6. Any payment may be subject to an audit or review and may be adjusted or recovered based on
the results of such audit or review.
7. Payments by the
Commission shall be deemed to be effected on the date when they are debited
to the
Commission's account.
SECTION 3 – IMPLEMENTATION
II.7. Subcontracting
1.
A
subcontractor is a third party which has entered into an agreement on business conditions
with one or more
beneficiaries, in order to carry out part of the work of the
project without
the direct supervision of the
beneficiary and without a relationship of subordination.
Where the
beneficiary enters into a subcontract to carry out some parts of the tasks related
to the
project, it remains bound by its obligations to the
Commission and the other
beneficiaries under the
grant agreement and retains sole responsibility for carrying out the
project and for compliance with the provisions of the
grant agreement.
Provisions of this
grant agreement applying to
subcontractors shall also apply to external
auditors who certify financial statements or a methodology.
2.
Where it is necessary for the
beneficiaries to subcontract certain elements of the work to be
carried out, the following conditions must be fulfilled:
-
subcontracts may only cover the execution of a limited part of the
project;
-
recourse to the award of subcontracts must be duly justified in Annex I having regard to
the nature of the
project and what is necessary for its implementation;
10
Version 20.12.06 ISC clean
- recourse to the award of subcontracts by a
beneficiary may not affect the rights and
obligations of the
beneficiaries regarding
background and
foreground;
-
Annex I must indicate the task to be subcontracted and an estimation of the costs;
Any subcontract, the costs of which are to be claimed as an eligible cost
, must be awarded
according to the principles of best value for money (best price-quality ratio), transparency
and equal treatment. Framework contracts between a
beneficiary and a
subcontractor,
entered into prior to the beginning of the
project that are according to the
beneficiary'
s usual
management principles may also be accepted.
3.
Beneficiaries may use external support services for assistance with minor tasks that do not
represent per se
project tasks as identified in Annex I.
II.8. Suspension of the project
1.
The
coordinator shall immediately inform the
Commission of any event affecting or
delaying the implementation of the
project.
2.
The
coordinator can propose to suspend the whole or part of the
project if
force majeure or
exceptional circumstances render its execution excessively difficult or uneconomic. The
coordinator must inform the
Commission without delay of such circumstances, including
full justification and information related to the event, as well as an estimation of the date
when the work on the
project will begin again.
3.
The
Commission may suspend the whole or part of the
project where it considers that the
consortium is not fulfilling its obligations according to this
grant agreement. The
coordinator shall be informed without delay of the justification for such an event and the
conditions necessary to reinstate the work again. The
coordinator shall inform the other
beneficiaries. This suspension takes effect 10 days after the notification to the
coordinator.
4. During the period of suspension, no costs may be charged to the
project.
5. The suspension of the whole or part of the
project may be lifted once the parties to the
grant
agreement have agreed on the continuation and, as appropriate, any necessary modification,
including extension of the duration of the
project, has been identified by means of a written
amendment.
II.9. Confidentiality and classified information
1.
During the
project and for a period of five years after its completion or any other period
thereafter as established in the
consortium agreement, the
beneficiaries undertake to
preserve the confidentiality of any data, documents or other material that is identified as
confidential in relation to the execution of the
project (“
confidential information”). The
Commission undertakes to preserve the confidentiality of "confidential information" until
five years after the completion of the
project. Upon a duly substantiated request by a
beneficiary, the
Commission may agree to extend this period regarding specific confidential
information.
Where
confidential information was communicated orally, its confidential character must be
confirmed by the disclosing party in writing within 15 days after disclosure
.
2.
Paragraph 1 no longer applies where:
11
Version 20.12.06 ISC clean
- the
confidential information becomes publicly available by means other than a breach of
confidentiality obligations;
- the disclosing party subsequently informs the recipient that the
confidential information
is no longer confidential;
- the
confidential information is subsequently communicated to the recipient without any
obligation of confidence by a third party who is in lawful possession thereof and under
no obligation of confidentiality;
- the disclosure or communication of the
confidential information is foreseen by other
provisions of this
grant agreement or the
consortium agreement;
- the disclosure or communication of
confidential information is required by the national
law of one of the
beneficiaries and this exception to the confidentiality requirement is
foreseen in the
consortium agreement2;
3.
The
beneficiaries undertake to use such confidential information only in relation to the
execution of the
project unless otherwise agreed with the disclosing party.
4.
Notwithstanding the preceding paragraphs, the treatment of classified data, documents or
other material (“
classified information”) must follow the applicable rules established by the
relevant
Community legislation, including the
Commission's internal rules for handling such
classified information3.
II.10.
Communication of data for evaluation, impact
assessment and standardisation purposes
1.
Beneficiaries shall provide, at the request of the
Commission, the data necessary for:
- the continuous and systematic review of the specific programme and the Seventh
Framework Programme;
- the evaluation and impact assessment of
Community activities, including the
use and
dissemination of
foreground.
Such data may be requested throughout the duration of the
project and up to five years after
the end of the
project.
The data collected may be used by the
Commission in its own evaluations but will not be
published other than on an anonymous basis.
2.
Without prejudice to the provisions regarding protection of
foreground and confidentiality,
the
beneficiaries shall, where appropriate, during the
project and for two years following its
end, inform the
Commission and the European standardisation bodies about
foreground which may contribute to the preparation of European or international standards.
2 As certain national laws (for example regarding freedom of information) may provide that proprietary information
made available under a confidentiality requirement must nevertheless be made public in case access is requested,
the
beneficiaries should inform each other of the existence of such national laws and make appropriate
arrangements in the
consortium agreement.
3 Commission Decision 2001/844/EC, ECSC, Euratom of 29 November 2001 OJ L 317, 3.12.2001, p. 1 (as last
amended by Decision 2006/548/EC, Euratom, OJ L 215, 5.8.2006, p. 38.
12
Version 20.12.06 ISC clean
II.11.
Information to be provided to Member States or
Associated Countries
1.
The
Commission shall, upon request, make available to any Member State
or
Associated
country any useful information in its possession on
foreground, provided that the following
conditions are met:
- the information concerned is relevant to public policy;
- the
beneficiaries have not provided sound and sufficient reasons for withholding the
information concerned;
- the applicable
Community rules on
classified information do not prohibit such action.
2.
As stipulated in the
Rules for Participation, the provision of information pursuant to
paragraph 1 shall not transfer to the recipient any rights or obligations and the recipient shall
be required to treat any such information as confidential unless it becomes duly public, or it
was communicated to the
Commission without restrictions on its confidentiality.
II.12.
Information and communication
1.
The
beneficiaries shall, throughout the duration of the
project, take appropriate measures to
engage with the public and the media about the
project and to highlight the
Community financial support. Unless the
Commission requests otherwise, any publicity, including at a
conference or seminar or any type of information or promotional material (brochure, leaflet,
poster, presentation etc), must specify that the
project has received
Community research
funding and display the European emblem. When displayed in association with a logo, the
European emblem should be given appropriate prominence. This obligation to use the
European emblem in respect of
projects to which the [European Community] [European
Atomic Energy Community] contributes
implies no right of exclusive use. It is subject to
general third-party use restrictions which do not permit the appropriation of the emblem, or
of any similar trademark or logo, whether by registration or by any other means. Under
these conditions,
beneficiaries are exempted from the obligation to obtain prior permission
from the
Commission to use the emblem. Further detailed information on the EU emblem
can be found on the Europa web page.
Any publicity made by the
beneficiaries in respect of the
project, in whatever form and on
or by whatever medium, must specify that it reflects only the author’s views and that the
Community is not liable for any use that may be made of the information contained therein.
2.
The
Commission shall be authorised to publish, in whatever form and on or by whatever
medium, the following information:
– the name of the
beneficiaries;
– contact addresses of
beneficiaries;
– the general purpose of the
project in the form of the summary provided by the
consortium;
– the amount and rate of the
Community financial contribution granted to the
project;
– the geographic location of the activities carried out;
– the list of
dissemination activities and/or of patent (applications) relating to
foreground;
13
Version 20.12.06 ISC clean
– the details/references and the abstracts of scientific publications relating to
foreground and, where provided pursuant to Article II.30, the published version or the final manuscript
accepted for publication;
– the publishable reports submitted to it;
– any picture or any audiovisual or web material provided to the
Commission in the
framework of the
project.
The
consortium shall ensure that all necessary authorisations for such publication have been
obtained and that the publication of the information by the
Commission does not infringe
any rights of third parties.
Upon a duly substantiated request by a
beneficiary, the
Commission may agree to forego
such publicity if disclosure of the information indicated above would risk compromising the
beneficiary’s security, academic or commercial interests.
II.13.
Processing of personal data
1. All personal data contained in the
grant agreement shall be processed in accordance with
Regulation (EC) No 45/2001 of the European Parliament and of the Council on the protection
of individuals with regard to the processing of personal data by the
Community institutions
and bodies and on the free movement of such data. Such data shall be processed by the
controller solely in connection with the implementation and follow-up of the
grant agreement and the evaluation and impact assessment of
Community activities, including the
use and
dissemination of
foreground, without prejudice to the possibility of passing the data to the
bodies responsible for inspection and audit in accordance with
Community legislation and this
grant agreement.
2.
Beneficiaries may, on written request, gain access to their personal data and correct any
information that is inaccurate or incomplete. They should address any questions regarding the
processing of their personal data to the Controller.
Beneficiaries may lodge a complaint
against the processing of their personal data with the European Data Protection Supervisor at
any time.
3. For the purpose of this
grant agreement, the “Controller” shall be the contact for the
Commission identified in Article 8.1.
Part B
FINANCIAL PROVISIONS
SECTION 1 – GENERAL FINANCIAL PROVISIONS
II.14.
Eligible costs of the project
1.
Costs incurred for the implementation of the
project shall meet the following conditions in
order to be considered eligible:
a) they must be actual;
b) they must be incurred by the
beneficiary;
c) they must be incurred during the duration of the
project, with the exception of costs
incurred in relation to final reports and reports corresponding to the last period as well as
14
Version 20.12.06 ISC clean
certificates on the financial statements when requested for the last period and final
reviews if applicable, which may be incurred during the period of up to 60 days after the
end of the
project or the date of termination whichever is earlier;
d) they must be determined in accordance with the usual accounting and management
principles and practices of the
beneficiary. The accounting procedures used in the
recording of costs and
receipts shall respect the accounting rules of the State in which
the
beneficiary is established. They shall permit the direct reconciliation between the
costs and
receipts for the implementation of the
project;
e) they must be used for the sole purpose of achieving the objectives of the
project and its
expected results, in a manner consistent with the principles of economy, efficiency and
effectiveness;
f) they must be recorded in the accounts of the
beneficiary;
g) they must be indicated in the estimated overall budget in Annex I.
Notwithstanding point a),
beneficiaries may opt to declare average personnel costs if certified in
accordance with a methodology approved by the
Commission and consistent with the
management principles and usual accounting practices of the
beneficiary. Average personnel costs
charged to this
grant agreement by a
beneficiary having provided a certification on the
methodology are deemed not to significantly differ from actual personnel costs.
Such a certification shall be issued in accordance with the provisions laid down in Article II.4
and Annex VII, unless it has already been submitted for a previous
grant agreement under the
Seventh Framework Programme and the methodology certified has not changed.
2.
Costs incurred by third parties in relation to resources they make available free of charge to
a
beneficiary, can be charged by the
beneficiary provided they meet the conditions
established in paragraphs 1 and 3,
mutatis mutandis and claimed in accordance with Article
II.17.
3.
The following costs shall be considered as non-eligible and may not be charged to the
project:
a) identifiable indirect taxes including value added tax,
b) duties,
c) interest owed,
d) provisions for possible future losses or charges,
e) exchange losses, cost related to return on capital,
f) costs declared or incurred, or reimbursed in respect of another
Community project,
g) debt and debt service charges, excessive or reckless expenditure.
II.15.
Identification of direct and indirect costs
15
Version 20.12.06 ISC clean
1.
Direct costs are all those eligible costs which can be attributed directly to the
project and are
identified by the
beneficiary as such, in accordance with its accounting principles and its
usual internal rules.
With regard to personnel costs, only the costs of the actual hours worked by the persons
directly carrying out work under
the project may be charged. Such persons must:
– be directly hired by the
beneficiary in accordance with its national legislation,
– work under the sole technical supervision and responsibility of the latter, and
– be remunerated in accordance with the normal practices of the
beneficiary.
Costs related to parental leave for persons who are directly carrying out the
project are
eligible costs provided that they are mandatory under national law.
2.
Indirect costs are all those eligible costs which cannot be identified by the
beneficiary as
being directly attributed to the
project but which can be identified and justified by its
accounting system as being incurred in direct relationship with the eligible direct costs
attributed to the
project. They may not include any eligible direct costs.
Indirect costs shall represent a fair apportionment of the overall overheads of the
organisation. They may be identified according to one of the following methods:
a) Based on the real indirect costs of the
beneficiary.
For this purpose, a
beneficiary is allowed to use a simplified method of calculation of its full
indirect eligible cost at the level of its legal entity if it is in accordance with its usual
accounting and management principles and practices. Use of such a method is only
acceptable where the lack of analytical accounting or the legal requirement to use a form of
cash-based accounting prevents detailed cost allocation. The simplified approach must be
based on actual costs derived from the financial accounts of the period in question.
b) A
beneficiary may opt for a flat rate of 20% of its total direct eligible costs, excluding its
direct eligible costs for subcontracting and the costs of reimbursement of resources made
available by third parties which are not used on the premises of the
beneficiary.
c)
Non-profit public bodies, secondary and higher education establishments, and
research
organisations and
SMEs, which are unable to identify with certainty their real indirect
costs for the
project, when participating in funding schemes which include research and
technological development and demonstration activities, as referred to in the table of
Article II.16, may opt for a flat-rate of 60% of the total direct eligible costs4 excluding
costs for subcontracting and the costs of reimbursement of resources made available by
third parties which are not used on the premises of the
beneficiary. If these
beneficiaries change their status during the life of the
project, this flat rate shall be applicable up to the
moment they lose their status.
In the case of coordination and support actions, the reimbursement of indirect eligible costs
for every
beneficiary may reach a maximum 7% of the direct eligible costs, excluding the
4 NOTE: The rate established in this indent will apply for grants awarded under calls for proposals closing before 1
January 2010. The
Commission shall establish, for grants awarded under calls closing after 31 December 2009,
an appropriate level of flat rate which should be an approximation of the real indirect costs concerned but not
lower than 40%, at that moment a special clause will be adopted and inserted in subsequent grant-agreements.
16
Version 20.12.06 ISC clean
direct eligible costs for subcontracting and the costs of reimbursement of resources made
available by third parties which are not used on the premises of the
beneficiary.
3.
The
beneficiary shall apply the option chosen in all
grant agreements under the Seventh
Framework Programme.
However, any
beneficiary that has opted for the possibilities described in b) and c) for
reimbursement of its indirect costs in a previous
grant agreement funded under the Seventh
Framework Programme may opt in this
grant agreement for one of the methods described in
a). However, it must then use that method in subsequent
grant agreements established
under
the Seventh Framework Programme.
II.16.
Upper funding limits
1.
For
research and technological development activities, the
Community financial
contribution may reach a maximum of 50% of the total eligible costs.
However, for
beneficiaries that are
non-profit public bodies, secondary and higher education
establishments,
research organisations and
SMEs, the rate may reach a maximum of 75% of
the total eligible costs. If these
beneficiaries change their status during the life of the
project,
this reimbursement rate shall be applicable up to the moment they lose their status.
2.
For
demonstration activities, the
Community financial contribution may reach a maximum
of 50% of the total eligible costs.
3.
For coordination and support actions, the
Community financial contribution may reach a
maximum of 100% of the total eligible costs.
4.
For
other activities not covered by paragraphs 1, 2 and 3,
inter alia, management activities
including certificates on the financial statements and certifications of the methodology,
training, coordination, networking and
dissemination (including publications), the
contribution may reach a maximum of 100% of the total eligible costs.
Paragraphs 1 to 4 shall apply also in the case of
projects where flat rate financing or lump sum
financing is used for the whole or for part of the
project.
5.
Management of the
consortium activities includes:
−
maintenance of the
consortium agreement, if it is obligatory,
−
the overall legal, ethical, financial and administrative management including, for
each of the
beneficiaries, obtaining the certificates on the financial statements or
on the methodology and costs relating to financial audits and technical reviews
−
implementation of competitive calls by the
consortium for the participation of new
beneficiaries, where required by Annex I of this
grant agreement,
−
any other management activities foreseen by the annexes, except coordination of
research and technological development activities.
6.
For
training activities, the salary costs of those being trained are not eligible costs under
this activity.
The table illustrates the maximum rates of
Community financial contribution for the activities
relating to the funding schemes below:
17
Version 20.12.06 ISC clean
Maximum
Research and
Demonstration
Other
reimbursement
technological
activities
activities
rates of
development(*)
(**)
eligible costs
Network of
50%
100%
excellence
75% (***)
Collaborative
50%
50%
100%
project
75% (***)
Coordination
100% (****)
and support
action
(*) Research and technological development includes scientific coordination.
(**) Other activities means any "specific activity" covered by Annex I.
(***) For
beneficiaries that are
non-profit public bodies, secondary and higher education establishments,
research organisations and
SMEs (****) The reimbursement of indirect eligible costs, in the case of coordination and support actions, may reach a maximum 7% of the
direct eligible costs, excluding the direct eligible costs for subcontracting and the costs of reimbursement of resources made available
by third parties which are not used on the premises of the
beneficiary.
II.17.
Receipts of the project
Receipts of the
project may arise from:
a) Resources made available by third parties to the
beneficiary -financial transfers or
contributions in kind which are free of charge:
i. shall be considered a
receipt of the
project if they have been contributed by the
third party specifically to be used on the
project.
ii. shall not be considered a
receipt of the
project if their use is at the discretion of
of the
beneficiary's management.
b) Income generated by the
project:
i. shall be considered
receipts for the
beneficiary when generated by actions undertaken
in carrying out the
project and from the sale of assets purchased under the
grant
agreement up to the value of the cost initially charged to the
project by the
beneficiary;
ii. shall not be considered a
receipt for the
beneficiary when generated from the
use of
foreground resulting from the
project.
II.18.
Community financial contribution
The "
Community financial contribution" to the
project shall be defined as the amount determined
as follows:
1.
By applying the upper funding limits indicated in Article II.16, per activity and per
beneficiary to the costs accepted by the
Commission and/or to the flat rates and/or lump
sums.
18
Version 20.12.06 ISC clean
2.
The
Community financial contribution shall be calculated by reference to the cost of the
project as a whole and its reimbursement shall be based on the reported costs of each
beneficiary.
3.
The Community financial contribution cannot give rise to any profit for any
beneficiary. For
this purpose, at the time of the submission of the last financial statement, the final amount of
the
Community financial contribution will take into account any
receipts of the
project received by each
beneficiary. For each
beneficiary, the
Community financial contribution cannot exceed the eligible costs minus the
receipts for the
project.
4.
The total amount of payments by the
Community shall not exceed in any circumstances the
maximum amount of the
Community financial contribution referred to in Article 5.
II.19.
Interest yielded by pre-financing provided by the
Commission
1.
Pre-financing remains the property of the
Community.
2.
The
Commission shall recover from the
coordinator, for each reporting period following the
implementation of the agreement, the amount of interest generated by pre-financing which
exceeds EUR [50,000]5
SECTION 2 – GUARANTEE FUND
II.20.
Financial responsibility
The financial responsibility of each
beneficiary shall be limited to its own debt, subject to Article
II.21.
II.21.
Guarantee fund
1.
Beneficiaries shall contribute to the Guarantee Fund (hereinafter the Fund) established in
order to manage the risk associated with non-recovery of sums due to the
Community by
beneficiaries of
grant agreements under the 7th Framework Programme. The contribution of
beneficiaries of this
grant agreement shall be offset from the initial pre-financing, under the
terms and conditions established in Article 6.
2. The Fund shall be deposited in a bank (hereinafter the Bank) chosen by the
Community
represented by the
Commission, acting as executive agent on behalf of the
beneficiaries of
grant agreements under the 7th Framework Programme.
3. Interest generated by the Fund shall be added to it and shall be used in priority by the
Commission for transfer from or recovery from the Fund referred to in paragraph 4
(hereinafter the Operations).
5 This amount shall be the one established in the final version of the Implementing Rules of the
Financial Regulation
which is currently under revision.
19
Version 20.12.06 ISC clean
Operations may be undertaken from 1st January 2007 until the day of the final payment of
the last
grant agreement under the 7th Framework Programme (hereinafter the Period). At
the end of the Period, any remaining interests shall become the property of the
Community.
Where interest is insufficient to cover Operations, contributions to the Fund may be used
within a limit never exceeding 20% of their value, and within a limit not exceeding 1% of
the
Community financial contributions due to
beneficiaries other than those referred to in
paragraph 6, last indent at the end of the Period. Beyond these limits or after the Period, the
Commission shall directly recover from
beneficiaries any amount owed to the
Community..
4. Subject to paragraph 3, the
Commission shall implement the following Operations on the
Fund:
a. where a
beneficiary in an on-going
grant agreement under the 7th Framework
Programme owes money to the
Community and does not transfer it to the
coordinator at the latest 45 days after receipt of a written request from the
Commission, and where the remaining
beneficiaries agree to implement the said
grant agreement identically regarding its objectives, the
Commission shall order
the Bank to directly transfer an equivalent amount to the
coordinator. Amounts
transferred from the Fund shall be regarded as
Community financial contribution.
b. where a
beneficiary in any terminated or completed
grant agreement under the 7th
Framework Programme owes money to the
Community, the
Commission shall
recover effectively from the Fund the amounts due.
Following an Operation, the
Commission shall issue against the defaulting
beneficiary a
recovery order to the benefit of the Fund. The
Commission may offset that recovery order
against any pending payment due by the
Community to the said
beneficiary or adopt a
recovery decision in accordance with Article II.25
5. At the moment of final payment, the amount contributed to the Fund under this
project shall
be returned to the
beneficiaries via the
coordinator, subject any offsetting of amounts due to
the
Community.
6. If contributions of
beneficiaries of
grant agreements under 7th Framework Programme have
been used, the
Commission shall deduct from the amount to be returned to each of the
beneficiaries of this
project an amount equal to:
“contribution of this project” X “Fund index”
The “Fund index” shall equal the ratio “contribution used”/”total contributions to the fund”,
as established at the end of each month by the Bank to be applied during the following
month. The applicable “Fund index” shall be that of the month [in which the
project ends][in which the final payment is effected].
That deduction shall not exceed one per cent of the
Community financial contribution due to
a
beneficiary and shall not apply to amounts due to
public bodies or legal entities whose
participation in the
grant agreement is guaranteed by a Member State or an
Associated
country, and higher and secondary education establishments.
20
Version 20.12.06 ISC clean
SECTION 3 – CONTROLS, RECOVERIES AND SANCTIONS
II.22.
Financial audits and controls
1.
The
Commission may, at any time during the
grant agreement and up to five years after the
end of the
project, arrange for financial audits to be carried out, by external auditors, or by
the
Commission departments themselves including OLAF. The audit procedure shall be
deemed to be initiated on the date of receipt of the relevant letter sent by the
Commission.
Such audits may cover financial, systemic and other aspects (such as accounting and
management principles) relating to the proper execution of the
grant agreement. They shall
be carried out on a confidential basis.
2.
The
beneficiaries shall make available directly to the
Commission all detailed information
and data that may be requested by the
Commission or any representative authorised by it,
with a view to verifying that the
grant agreement is properly managed and performed in
accordance with its provisions and that costs have been charged in compliance with it. This
information and data must be precise, complete and effective.
3.
The
beneficiaries shall keep the originals or, in exceptional cases, duly authenticated copies
–including electronic copies-, of all documents relating to the
grant agreement for up to five
years from the end of the
project. These shall be made available to the
Commission where
requested during any audit under the
grant agreement.
4.
In order to carry out these audits, the
beneficiaries shall ensure that the
Commission's
departments and any external body(ies) authorised by it have on the spot access at all
reasonable times, notably to the
beneficiary's offices, to its computer data, to its accounting
data and to all the information needed
to carry out those audits, including information on
individual salaries of persons involved in the
project. They shall ensure that the information
is readily available on the spot at the moment of the audit and, if so requested, that data be
handed over in an appropriate form.
5.
On the basis of the findings made during the financial audit, a provisional report shall be
drawn up. It shall be sent by the
Commission or its authorised representative to the
beneficiary concerned, who may make observations thereon within one month of receiving
it. The
Commission may decide not to take into account observations conveyed or
documents sent after that deadline. The final report shall be sent to the
beneficiary
concerned within two months of expiry of the aforesaid deadline.
6.
On the basis of the conclusions of the audit, the
Commission shall take all appropriate
measures which it considers necessary, including the issuing of a recovery order regarding
all or part of the payments made by it and the application of any applicable sanction.
7.
The European Court of Auditors shall have the same rights as the
Commission, notably right
of access, for the purpose of checks and audits, without prejudice to its own rules.
8.
In addition, the
Commission may carry out on-the-spot checks and inspections in accordance
with Council Regulation (Euratom, EC) No 2185/96 of 11 November 1996 concerning on-
the-spot checks and inspections carried out by the
Commission in order to protect the
European Communities’ financial interests against fraud and other irregularities16 and
Regulation (EC) No 1073/1999 of the European Parliament and of the Council of 25 May
16 OJ L 292, 15.11.1996, p.2.
21
Version 20.12.06 ISC clean
1999 concerning investigations conducted by the European Anti-Fraud Office (OLAF)17
Council Regulation (Euratom) No 1074/1999 of 25 May 1999 concerning investigations
conducted by the European Anti-Fraud Office (OLAF)18.
II.23.
Technical reviews
1. The
Commission may initiate a technical review at any time during the implementation of
the
project and up to the date of the final payment. The aim of a technical review shall be
to assess the work carried out under the
project over a certain period,
inter alia by
evaluating the
project reports and deliverables relevant to the period in question. Such
reviews may cover scientific, technological and other aspects relating to the proper
execution of the
project and the
grant agreement.
2. With respect to the Description of work (Annex I), the review shall objectively establish:
- the degree of fulfilment of the
project work plan for the relevant period and of the
related deliverables
- the continued relevance of the objectives and breakthrough potential with respect to the
scientific and industrial state of the art,
- the resources planned and utilised in relation to the achieved progress, in a manner
consistent with the principles of economy, efficiency and effectiveness,
- the management procedures and methods of the
project ,
- the
beneficiaries’ contributions and integration within the
project, - the expected potential impact in economic, competition and social terms, and the
beneficiaries' plans for the
use and
dissemination of
foreground.
3. The review shall be deemed to be initiated on the date of receipt by the
beneficiary(ies) of
the relevant letter sent by the
Commission.
4. Any such review shall be carried out on a confidential basis.
5. The
Commission may be assisted in the technical review by external scientific or
technological experts. Prior to the carrying out of the evaluation task, the
Commission shall communicate to the
beneficiaries the identity of the appointed experts. The
beneficiary(ies) shall have the right to refuse the participation of a particular external
scientific or technological expert on grounds of commercial confidentiality.
6. The review may be carried out remotely at the expert's home or place of work or involve
sessions with
project representatives either at the
Commission premises or at the premises
of
beneficiaries. The
Commission or the external scientific or technological expert may
have access to the locations and premises where the work is being carried out, and to any
document concerning the work.
7. The
beneficiaries shall make available directly to the
Commission all detailed information
and data that may be requested by it or the external scientific or technological expert with
a view to verifying that the
project is being properly implemented and performed in
accordance with the provisions of this
grant agreement.
17 OJ L 136, 31.5.1999
18 OJ L 136, 31.5.1999
22
Version 20.12.06 ISC clean
8. A report on the outcome of the review shall be drawn up. It shall be sent by the
Commission to the
beneficiary concerned, who may make observations thereon within one
month of receiving it. The
Commission may decide not to take into account the
observations conveyed after that deadline.
9. An ethics audit may be undertaken at the discretion of the
Commission Services.
10. On the basis of the experts' formal recommendations the
Commission will inform the
coordinator of its decision:
- to allow the
project to continue without modification or with minor modifications after
approval of the deliverables or;
- to consider that the
project can only continue with major modifications or;
- to initiate the termination of the
grant agreement or of the participation of any
beneficiary according to Article II. 38.
II.24.
Liquidated damages and financial penalties
A.
Liquidated damages
1.
A
beneficiary that is found to have overstated any amount and which has therefore received
an unjustified financial contribution from the
Community shall, without prejudice to any
other measures provided for in this
grant agreement, be liable to pay damages, hereinafter
"liquidated damages". Liquidated damages are due in addition to the recovery of the
unjustified financial contribution from the
beneficiary.
2.
Any amount of liquidated damages shall be proportionate to the overstated amount and the
unjustified part of the
Community contribution. The following formula shall be used to
calculate liquidated damages:
Liquidated damages = unjustified financial contribution x (overstated amount/ total
amount claimed)
The calculation of any liquidated damages shall only take into consideration the period
relating to the
beneficiary’s claim for the
Community financial contribution for that period.
It shall not be calculated in relation to the entire
Community financial contribution.
3.
The
Commission shall inform the
beneficiary which it considers liable to pay liquidated
damages in writing of its claim by way of a registered letter with acknowledgement of
receipt. The
beneficiary shall have a period of 30 days to answer the
Community's claim.
4.
The procedure for repayment of unjustified financial contribution and for payment of
liquidated damages will be determined in accordance with the provisions of Article II.25.
Liquidated damages will be deducted from any further payment or will be subject to
recovery by the
Commission.
5.
The
Commission shall be entitled to liquidated damages in respect of any overstated amount
which comes to light after the
grant agreement has been completed, in accordance with the
provisions of paragraphs 1 to 4.
23
Version 20.12.06 ISC clean
B.
Financial penalties
1. A
beneficiary that has been guilty of making false declarations or has been found to have
seriously failed to meet its obligations under this
grant agreement shall be liable to financial
penalties of between 2% and 10% of the value of the
Community financial contribution received by that
beneficiary. The rate may be increased to between 4% and 20% in the event
of a repeated offence within five years following the first infringement.
2. In the cases of paragraph 1,
beneficiaries shall be excluded from all grants for a maximum of
two years from the date the infringement has been established.
3. The provisions in this Article shall be without prejudice to any administrative or financial
sanction that may be imposed on any defaulting
beneficiary in accordance with the
Financial
Regulation or to any other civil remedy to which the
Community or any other
beneficiary may
be entitled. Furthermore, these provisions shall not preclude any criminal proceedings which
may be initiated by the Member States' authorities.
II.25.
Reimbursement to the Commission and recovery orders
1.
Where an amount, paid by the
Commission to the
coordinator in his capacity of recipient of
all payments, is to be recovered under the terms of this
grant agreement, the
coordinator undertakes to repay the
Commission the sum in question, on whatever terms and by
whatever date it may specify, even if the
coordinator has not been the final recipient of the
amount due. In the latter case, if payment has not been made by the due date, the
Commission reserves the right to recover directly the amount due from the final recipient.
2.
If the obligation to pay the amount due is not honoured by the date set by the
Commission,
the sum due shall bear interest at the rate indicated in Article II.5. Interest on late payment
shall cover the period between the date set for payment, exclusive and the date on which the
Commission receives full payment of the amount owed, inclusive.
Any partial payment shall first be entered against charges and interest on late payment and
then against the principal.
3.
If payment has not been made by the due date, sums owed to the
Commission may be
recovered by offsetting them against any sums owed to the
beneficiary concerned, after
informing the latter accordingly, or by calling in the guarantee mechanism provided for in
Article II.21. In exceptional circumstances, justified by the necessity to safeguard the
financial interests of the Communities, the
Commission may recover by offsetting before the
due date of the payment. The
beneficiary’s prior consent shall not be required.
4.
The
beneficiary understands that under Article 256 of the Treaty establishing the European
Community
, Articles 164 and 192 of the Treaty establishing the European Atomic Energy
Community and as provided by the
Financial Regulation, the
Commission may adopt an
enforceable decision formally establishing an amount as receivable from persons other than
States.
24
Version 20.12.06 ISC clean
Part C
INTELLECTUAL PROPERTY RIGHTS,
USE AND
DISSEMINATION
SECTION 1 – FOREGROUND
II.26.
Ownership
1.
Foreground shall be the property of the
beneficiary carrying out the work generating that
foreground.
2.
Where several
beneficiaries have jointly carried out work generating
foreground and where
their respective share of the work cannot be ascertained, they shall have joint ownership of
such
foreground. They shall establish an agreement6 regarding the allocation and terms of
exercising that joint ownership.
However, where no joint ownership agreement has yet been concluded, each of the joint
owners shall be entitled to grant non-exclusive licences to third parties, without any right to
sub-licence, subject to the following conditions:
a) at least 45 days prior notice must be given to the other joint owner(s); and
b) fair and reasonable compensation must be provided to the other joint owner(s).
3.
If employees or other personnel working for a
beneficiary are entitled to claim rights to
foreground, the
beneficiary shall ensure that it is possible to exercise those rights in a
manner compatible with its obligations under this
grant agreement.
II.27.
Transfer
1.
Where a
beneficiary transfers ownership of
foreground, it shall pass on its obligations
regarding that
foreground to the assignee including the obligation to pass those obligations
on to any subsequent assignee.
2.
Subject to its obligations concerning confidentiality
such as in the framework of a merger or
an acquisition of an important part of its assets, where a
beneficiary is required to pass on its
obligations to provide
access rights, it shall give at least 45 days prior notice to the other
beneficiaries of the envisaged transfer, together with sufficient information concerning the
envisaged new owner of the
foreground to permit them to exercise their
access rights.
However, the
beneficiaries may, by written agreement, agree on a different time-limit or
waive their right to prior notice in the case of transfers of ownership from one
beneficiary to
a specifically identified third party.
3.
Following notification in accordance with paragraph 2, any other
beneficiary may object
within 30 days of the notification or within a different time-limit agreed in writing, to any
envisaged transfer of ownership on the grounds that it would adversely affect its
access
rights.
6
The joint owners may of course agree not to continue with joint ownership but decide on an alternative regime
(for example, a single owner with access rights for the other
beneficiaries that transferred their ownership share).
25
Version 20.12.06 ISC clean
Where any of the other
beneficiaries demonstrate that their
access rights would be adversely
affected, the intended transfer shall not take place until agreement has been reached between
the
beneficiaries concerned.
4.
Where a
beneficiary intends to transfer ownership of
foreground to a third party established
in a
third country not associated to the Seventh Framework Programme, the
Commission may object to such a transfer of ownership of
foreground, if it considers that this is not in
accordance with the interests of developing the competitiveness of the European economy or
is inconsistent with ethical principles or security considerations.
In such cases, the transfer of ownership shall not take place unless the
Commission is
satisfied that appropriate safeguards will be put in place.
In
projects funded by the European Atomic Energy Community, security considerations
must be understood as being the defence interests of the Member States within the meaning
of Article 24 of the Treaty establishing the European Atomic Energy Community.
II.28.
Protection
1.
Where
foreground is capable of industrial or commercial application, its owner shall provide
for its adequate and effective protection, having due regard to its legitimate interests and the
legitimate interests, particularly the commercial interests, of the other
beneficiaries.
Where a
beneficiary which is not the owner of the
foreground invokes its legitimate interest,
it must, in any given instance, show that it would suffer disproportionately great harm.
2.
Patent applications relating to
foreground, filed by or on behalf of a
beneficiary must
include the following statement to indicate that said
foreground was generated with the
assistance of financial support from the
Community:
The work leading to this invention has received funding from the [European
Community's] [European Atomic Energy Community's] Seventh Framework
Programme ([FP7/2007-2013] [FP7/2007-2011]) under grant agreement n° [xxxxxx].7
Furthermore, all patent applications relating to
foreground filed before the end of a reporting
period shall be reported in the plan for the
use and
dissemination of
foreground, including
sufficient details/references to enable the
Commission to trace the patent (application). Any
such filing arising after the final report must be notified to the
Commission including the
same details/references.
3.
Where the
foreground is capable of industrial or commercial application and its owner does
not protect it and does not transfer it to another
beneficiary, to an
affiliated entity established
in a Member State or
Associated country or to any other third party established in a Member
State or
Associated country along with the associated obligations in accordance with Article
II.27, no
dissemination activities relating to said
foreground may take place before the
Commission has been informed. The
Commission must be informed at the latest 45 days
prior to the intended
dissemination activity.
In such cases, the
Community may, with the consent of the
beneficiary concerned, assume
ownership of that
foreground and adopt measures for its adequate and effective protection.
7 This statement will have to be translated into the language of the patent filing. Translations in all
Community
languages will be provided.
26
Version 20.12.06 ISC clean
The
beneficiary concerned may refuse consent only if it can demonstrate that its legitimate
interests would suffer disproportionately great harm.
In the event the
Community assumes ownership, it shall take on the obligations regarding the
granting of
access rights.
II.29.
Use
1.
The
beneficiaries shall use the
foreground which they own or ensure that it is used.
2.
The
beneficiaries shall report on the expected
use to be made of
foreground in the plan for
the
use and
dissemination of
foreground. The information must be sufficiently detailed to
permit the
Commission to carry out any related audit.
II.30.
Dissemination
1.
Each
beneficiary shall ensure that the
foreground of which it has ownership is disseminated
as swiftly as possible. If it fails to do so, the
Commission may disseminate that
foreground.
2.
Dissemination activities shall be compatible with the protection of intellectual property
rights, confidentiality obligations and the legitimate interests of the owner(s) of the
foreground.
In
projects funded by the European Atomic Energy Community,
dissemination activities
shall also be compatible with the defence interests of the Member States within the meaning
of Article 24 of the Treaty establishing the European Atomic Energy Community.
3.
At least 45 days prior notice of any
dissemination activity shall be given to the other
beneficiaries concerned, including sufficient information concerning the planned
dissemination activity and the data envisaged to be disseminated.
Following notification, any of those
beneficiaries may object within 30 days of the
notification to the envisaged
dissemination activity if it considers that its legitimate interests
in relation to its
foreground or
background could suffer disproportionately great harm. In
such cases, the
dissemination activity may not take place unless appropriate steps are taken
to safeguard these legitimate interests.
The
beneficiaries may agree in writing on different time-limits to those set out in this
paragraph, which may include a deadline for determining the appropriate steps to be taken.
4.
All publications or any other
dissemination relating to
foreground shall include the
following statement to indicate that said
foreground was generated with the assistance of
financial support from the
Community:
The research leading to these results has received funding from the [European
Community's] [European Atomic Energy Community's] Seventh Framework
Programme ([FP7/2007-2013] [FP7/2007-2011]) under grant agreement n° [xxxxxx]. 8
Any
dissemination activity shall be reported in the plan for the
use and
dissemination of
foreground, including sufficient details/references to enable the
Commission to trace the
8 This statement will have to be translated into the language of the dissemination activity. Translations in all
Community languages will be provided.
27
Version 20.12.06 ISC clean
activity. With regard to scientific publications relating to
foreground published before or
after the final report, such details/references and an abstract of the publication must be
provided to the
Commission at the latest two months following publication. Furthermore, an
electronic copy of the published version or the final manuscript accepted for publication
shall also be provided to the
Commission at the same time for the purpose set out in Article
II.12(2) if this does not infringe any rights of third parties.
SECTION 2 – ACCESS RIGHTS
II.31.
Background covered
Beneficiaries may define the
background needed for the purposes of the
project in a written
agreement and, where appropriate, may agree to exclude specific
background9.
II.32.
Principles
1.
All requests for
access rights shall be made in writing.
2.
The granting of
access rights may be made conditional on the acceptance of specific
conditions aimed at ensuring that these rights will be used only for the intended purpose and
that appropriate confidentiality obligations are in place.
3.
Without prejudice to their obligations regarding the granting of
access rights,
beneficiaries shall inform each other as soon as possible of any limitation to the granting of
access rights to
background, or of any other restriction which might substantially affect the granting of
access rights.
4.
The termination of the participation of a
beneficiary shall in no way affect the obligation of
that
beneficiary to grant
access rights to the remaining
beneficiaries.
5.
Unless otherwise agreed by the owner of the
foreground or
background,
access rights shall
confer no entitlement to grant sub-licences.
6.
Without prejudice to paragraph 7, any agreement providing
access rights to
foreground or
background to
beneficiaries or third parties must ensure that potential
access rights for other
beneficiaries are maintained.
7.
Exclusive licences for specific
foreground or
background may be granted subject to written
confirmation by all the other
beneficiaries that they waive their
access rights thereto.
8.
However, where a
beneficiary intends to grant an exclusive licence to
foreground to a third
party established in a
third country not associated to the Seventh Framework Programme,
the
Commission may object to the granting of such an exclusive licence, if it considers that
this is not in accordance with the interests of developing the competitiveness of the
European economy or is inconsistent with ethical principles or security considerations.
9
Such an exclusion may be temporary (e.g. to permit the adequate protection of the
background prior to providing
access) or limited (e.g. to exclude only one or more specific
beneficiaries). As
background is by definition
considered to be needed for implementation or use, the impact of such an exclusion on the
project, particularly
regarding an exclusion which does not have a temporary character, should be examined by the
beneficiaries.
28
Version 20.12.06 ISC clean
In such cases, the exclusive licence shall not take place unless the
Commission is satisfied
that appropriate safeguards will be put in place.
In
projects funded by the European Atomic Energy Community, the
Commission may also
object to the intended grant of any non-exclusive licence to a third party established in a
third country not associated to the Seventh Framework Programme on the same conditions
as set out in this sub-paragraph. Security considerations shall in case of such
projects be
understood as being the defence interests of the Member States within the meaning of
Article 24 of the Treaty establishing the European Atomic Energy Community.
II.33.
Access rights for implementation
1.
Access rights to
foreground shall be granted to the other
beneficiaries, if it is needed to
enable those
beneficiaries to carry out their own work under the
project.
Such
access rights shall be granted on a royalty-free basis.
2.
Access rights to
background shall be granted to the other
beneficiaries, if it is needed to
enable those
beneficiaries to carry out their own work under the
project provided that the
beneficiary concerned is entitled to grant them.
Such
access rights shall be granted on a royalty-free basis, unless otherwise agreed by all
beneficiaries before their accession to this agreement.
II.34.
Access rights for use
1.
Beneficiaries shall enjoy
access rights to
foreground, if it is needed to use their own
foreground.
Subject to agreement, such
access rights shall be granted either under
fair and reasonable
conditions or be royalty-free.
2.
Beneficiaries shall enjoy
access rights to
background, if it is needed to use their own
foreground provided that the
beneficiary concerned is entitled to grant them.
Subject to agreement, such
access rights shall be granted either under
fair and reasonable
conditions or be royalty-free.
3.
An
affiliated entity established in a Member State or
Associated country shall also enjoy
access rights, referred to in paragraphs 1 and 2, to
foreground or
background under the
same conditions as the
beneficiary to which it is affiliated, unless otherwise provided for in
the
consortium agreement. As the
access rights referred to in paragraphs 1 and 2 require that
access is needed to use own
foreground, this paragraph only applies if ownership of
foreground was (partially) transferred to an affiliate entity established in a Member State or
Associated country. The
beneficiaries may provide for additional arrangements regarding
such
access rights in their
consortium agreement, including regarding any notification
requirements.
4.
A request for
access rights under paragraphs 1, 2 or 3 may be made up to one year after
either of the following events:
a) the end of the
project; or
29
Version 20.12.06 ISC clean
b) termination of participation by the owner of the
background or
foreground
concerned.
However, the
beneficiaries concerned may agree on a different time-limit10.
FINAL PROVISIONS
II.35.
Requests for amendments and termination at the initiative
of the consortium
1.
Requests for amendments and termination shall be signed by the legal representative of the
parties and submitted in accordance with Article 8. Any request or acceptance by the
consortium or a
beneficiary(ies) shall be submitted by the
coordinator. The
coordinator is
deemed to act on behalf of all
beneficiaries when signing a request, an acceptance or
rejection letter concerning an amendment as well as when requesting a termination. The
coordinator shall ensure that adequate proof of the
consortium’s agreement to such an
amendment or termination exists and is made available in the event of an audit or upon
request of the
Commission.
2.
In the case of change of
coordinator without its agreement, the request shall be submitted by
all other
beneficiaries or by one of them representing the others.
3.
A request for amendment including more than one modification to the agreement shall be
considered a package that cannot be separated into several requests and shall be approved or
rejected by the other party as a whole, except where the request explicitly states that it
contains separate requests that can be approved independently.
4.
Requests for the addition of a new
beneficiary shall include a completed Form B (Annex
V), duly signed by such new entity. Any addition is subject to the conditions required by the
Rules for Participation, the related call for proposals and the
Financial Regulation. Such
additional entity shall assume the rights and obligations of
beneficiaries as established by
the
grant agreement with effect from the date
of their accession specified in the signed Form
B
.
5.
The amendments may not have the purpose or the effect of making changes to the
agreement which might call into question the decision awarding the grant or result in
unequal treatment of the
beneficiaries.
6.
Requests for termination of the participation of one or more
beneficiaries shall include:
- the
consortium’s proposal for reallocation of the tasks and budget of that
beneficiary,
- the reasons for requesting the termination,
- the proposed date on which the termination shall take effect,
10 This can be a longer or shorter time-limit.
30
Version 20.12.06 ISC clean
- a letter containing the opinion of the
beneficiary whose participation is
requested to be terminated and
- the reports and deliverables referred to in Article II.4, relating to the work
carried out by this
beneficiary up to the date on which the termination takes
effect, together with a comment of the
coordinator on behalf of the
consortium on these reports and deliverables and a declaration on distribution of payments
to this
beneficiary by the
coordinator.
In the absence of receipt of such documents, the request shall not be considered as a valid
request.
The letter containing the opinion of the
beneficiary concerned can be substituted by proof
that this
beneficiary has been requested in writing to express its opinion on the proposed
termination of its participation and to send the reports and deliverables but failed to do so
within the time-limit established by that notification. This time-limit shall not be inferior to
one month. In this case, if no reports have been submitted with the request for termination,
the
Commission shall not take into account any further cost claims of that
beneficiary and
shall not make any further reimbursement for it.
Unless otherwise agreed with the
Commission, all the tasks of the
beneficiary whose
participation is terminated must be reallocated within the
consortium.
Consortium requests for termination of the
grant agreements shall provide the justification
for termination and the reports and deliverables referred to in Article II.4 relating to the
work carried out up to the date on which the termination takes effect.
II.36.
Approval of amendments and termination requested by
the consortium
1. The parties
to this grant agreement undertake to approve or reject any valid request for an
amendment or termination within 45 days of its receipt. The absence of a response within 45
days of receipt of such a request shall be considered as a rejection.
2. By derogation to paragraph 1, when the
consortium requests the addition or the termination of
the participation of a
beneficiary, the absence of a response from the
Commission within 45
days of receipt of such a request constitutes approval, except in cases of absence of the
agreement of the
beneficiary concerned and in cases of appointment of a new
coordinator, which shall require the written approval of the
Commission.
Where the
Commission does not object within this period, it is deemed to have approved the
request on the last day of the time-limit. The
Commission undertakes to send a letter for
information purposes in case of tacit approval.
Where the request for the addition or removal of a
beneficiary is associated with requests for
other modifications to the
grant agreement which are not directly related to this addition or
removal, the whole request shall be subject to written approval by the
Commission.
3. The
Commission approval of the requested amendment or termination shall be notified to the
coordinator, which receives it on behalf of the
consortium In case of termination of the
participation of one or more
beneficiaries, the
Commission shall send a copy to the
beneficiary concerned.
31
Version 20.12.06 ISC clean
4. Amendments and terminations shall take effect on the date agreed by the parties; where there
is no date specified they shall take effect on the date of the
Commission’s approval.
II.37.
Competitive calls
1. When required by the terms of Annex I, the
consortium shall identify and propose to the
Commission the participation of new
beneficiaries following a competitive call in accordance
with the provisions of this Article.
2. The
consortium shall publish the competitive call at least in one international journal and in
three different national newspapers in three different Member States or
Associated countries. It
shall also be responsible for advertising the call widely using specific information support,
particularly Internet sites on the Seventh Framework Programme, the specialist press and
brochures and through the national contact points set up by Member States and
Associated
countries. In addition, the publication and advertising of the call shall conform to any instructions
and guidance notes established by the
Commission. The
consortium shall inform the
Commission of the call and its content at least 30 days prior to its expected date of publication.
3
The competitive call shall remain open for the submission of proposals by interested parties
for a period of at least five weeks.
4. The
consortium shall evaluate offers received in the light of the criteria that governed the
Commission’s evaluation and selection of the
project, defined in the relevant call for proposals,
and with the assistance of at least two independent experts appointed by the
consortium on the
basis of the criteria described in of the
Rules for Participation.
5. The
consortium shall notify the
Commission of the proposed accession of a new
beneficiary(ies) in accordance with Article II.35. At the same time, it will inform the
Commission of the means by which the competitive call was published and of the names and affiliation of the
experts involved in the evaluation. The
Commission may object to the accession of any new
beneficiary within six weeks of the receipt of the notification.
II.38.
Termination of the grant agreement or of the participation
of one or more beneficiaries at the Commission’s initiative
1.
The
Commission may terminate the
grant agreement or the participation of a
beneficiary in
the following cases:
a) where one or more of the legal entities identified in Article 1 does not accede to this
grant agreement.
b) in case of non-performance or poor performance of the work or breach of any substantial
obligation imposed by this
grant agreement that is not remedied following
a written
request to the
consortium to rectify the situation within a period of 30 days;
c) where the
beneficiary has deliberately or through negligence committed an
irregularity
in the performance of any
grant agreement with the
Commission;
d) where the
beneficiary has contravened fundamental ethical principles;
e) where the required reports or deliverables are not submitted or the
Commission does not
approve the reports or deliverables submitted;
32
Version 20.12.06 ISC clean
f) for major technical or economic reasons substantially adversely affecting the completion
of the
project;
g) if the
use potential of the project results diminishes to a considerable extent;
h) where a legal, financial, organisational or technical change or
change of control of a
beneficiary calls into question the decision of the
Commission to accept its participation;
i) where any such change identified in h) above or termination of the participation of the
beneficiary(ies) concerned substantially affects the implementation of the
project, or the
interests of the
Community, or calls into question the decision to grant the
Community contribution;
j) in case of
force majeure notified in conformity with Article II.40, where any reactivation
of the
project after suspension is impossible;
k) where the conditions for participation in the
project established by the
Rules for
Participation or as amended by the call for proposals to which the
project was submitted
are no longer satisfied, unless the
Commission considers that the continuation of the
project is essential to the implementation of the specific programme;
l) where a
beneficiary is found guilty of an offence involving its professional conduct by a
judgment having the force of
res judicata or if it is guilty of grave professional
misconduct proven by any justified means;
m) where further to the termination of the participation of one or more
beneficiaries, the
consortium does not propose to the
Commission an amendment to the
grant agreement with the necessary modifications for the continuation of the
project including the
reallocation of task of the
beneficiary whose participation is terminated within the time-
limit determined by the
Commission, or where the
Commission does not accept the
proposed modifications.
2.
Termination of the participation of one or more
beneficiaries at the
Commission’s initiative
shall be notified to the
beneficiary(ies) concerned, with a copy to the
coordinator and shall
become effective 30 days after its receipt by the
beneficiary.
The
Commission shall inform the
consortium of the effective date of termination.
In the case of termination of the
grant agreement, the
coordinator shall be notified, who
shall in turn notify all the other
beneficiaries and the termination shall become effective 45
days after receipt by the
coordinator.
3.
Within 45 days after the effective date of termination, the
beneficiary(ies) whose
participation is terminated shall submit (through the
coordinator) all required reports and
deliverables referred to in Article II.4 relating to the work carried out up to that date. In the
absence of receipt of such documents within the above time-limits, the
Commission may,
after providing 30 days notice in writing of the non-receipt of such documents, determine
not to take into account any further cost claims and not to make any further reimbursement
and, where appropriate, require the reimbursement of any
pre-financing due by the
beneficiary(ies).
4.
The
consortium has up to 30 days after the effective date of termination of the
beneficiary’s
participation to provide the
Commission with information on the share of the
Community contribution that has been effectively transferred to such
beneficiary since the beginning of
the
project.
33
Version 20.12.06 ISC clean
5.
In the absence of receipt of such information within the time-limits, the
Commission shall
consider that the
beneficiary whose participation is terminated owes no money to the
Commission and that the
Community contribution already paid is still at the disposal of the
consortium and under its responsibility.
6.
Based on documents and information referred to in the paragraphs above, the
Commission shall establish the debt owed by the
beneficiary whose participation is terminated.
7.
Where the participation of one or more
beneficiaries is terminated, the
beneficiary(ies) whose participation is terminated shall reimburse the amount due to the
Commission or
transfer it to the
consortium as requested by the
Commission, within 30 days. The
Commission shall send a copy of such a request to the
coordinator. In the latter case, the
consortium shall inform the
Commission at the latest 10 days after the end of this time-limit
if the amount was transferred to it.
8.
Where the
grant agreement is terminated, the
Commission shall establish the debt owed by
the
consortium and notify it to the
coordinator.
II.39.
Financial contribution after termination and other
termination consequences
1.
In the event of termination any financial contribution from the
Community is limited to those
eligible costs incurred and accepted up to the effective date of such termination and of any
legitimate commitments taken prior to that date, which cannot be cancelled.
2.
By derogation to the above paragraph:
-
in the case of Article II.38.1.a), no costs incurred by the
consortium under the
project can be approved or accepted as eligible for reimbursement by the
Community. Any
pre-
financing provided to the
consortium and any interest generated by the
pre-financing must be returned in full to the
Commission.
-
in the case of Article II.38.1.b), any financial contribution from the
Community is
limited to those eligible costs incurred up to the date of receipt of the written request to
rectify the breach.
3.
In addition, in the cases of Article II.38.1.b), c), d) l) and m) the
Commission may require
reimbursement of all or part of the
Community's financial contribution. In the case of Article
II.38.1.b) and m) the
Commission shall take into account the nature and results of the work
carried out and its usefulness to the
Community in the context of the specific programme
concerned
4.
Reports and deliverables submitted in the framework of a termination are deemed to be
submitted at the end of the corresponding reporting period.
5.
Where the
Community makes a payment after the termination of the participation of a
beneficiary or after termination of the
grant agreement, this payment shall be considered as
a final payment in relation to such
beneficiary(ies) or the
project, respectively and in any
case shall be done through the
coordinator.
Notwithstanding the termination of the
grant agreement or the participation of one or more
beneficiaries, the provisions identified in Articles II.9, II.10, II.11, II.12, II.22, II.23, II.24, II.25,
II.35, II.36, II.38, II.41, II.42 and Part C of Annex II continue to apply after the termination of the
grant agreement or the termination of the participation of such
beneficiary(ies).
34
Version 20.12.06 ISC clean
II.40.
Force majeure
1.
Force majeure shall mean any unforeseeable and exceptional event affecting the fulfilment
of any obligation under this
grant agreement by the parties, which is beyond their control
and cannot be overcome despite their reasonable endeavours. Any default of a product or
service or delays in making them available for the purpose of performing this
grant
agreement and affecting such performance, including, for instance, anomalies in the
functioning or performance of such product or service, labour disputes, strikes or financial
difficulties do not constitute
force majeure.
2.
If any of the
beneficiaries is subject to
force majeure liable to affect the fulfilment of its
obligations under this
grant agreement, the
consortium shall notify without delay the
Commission, stating the nature, likely duration and foreseeable effects.
3.
If the
Community is subject to
force majeure liable to affect the fulfilment of its obligations
under this
grant agreement, it shall notify without delay the
consortium, stating the nature,
likely duration and foreseeable effects.
4.
No party shall be considered to be in breach of its obligation to execute the
project if it has
been prevented from complying by
force majeure. Where
beneficiaries cannot fulfil their
obligations to execute the
project due to
force majeure, remuneration for accepted eligible
costs incurred may be made only for tasks which have actually been executed up to the date
of the event identified as
force majeure. All necessary measures shall be taken to limit
damage to the minimum.
II.41.
Assignment
The
beneficiaries shall not assign any of the rights and obligations arising from the
grant
agreement except those cases provided for in Article 27 (transfer of
foreground), without the prior
and written authorisation of the
Commission and the other
beneficiaries.
II.42.
Liability
1.
The
Community cannot be held liable for any acts or omissions of the
beneficiaries in
relation to this
grant agreement. It shall not be liable for any defaults of any products,
processes or services created on the basis of
foreground, including, for instance, anomalies
in the functioning or performance thereof.
2.
Each
beneficiary fully guarantees the
Community, and agrees to indemnify it, in case of any
action, complaint or proceeding brought by a third party against the
Community as a result
of damage caused, either by any of its acts or omissions in relation to this
grant agreement,
or by any products, processes or services created by it on the basis of
foreground resulting
from the
project.
In the event of any action brought by a third party against a
beneficiary in connection with
the performance of this
grant agreement, the
Commission may assist the latter upon written
request. The costs incurred by the
Commission in this connection shall be borne by the
beneficiary concerned.
35
Version 20.12.06 ISC clean
3.
Each
beneficiary shall bear sole responsibility for ensuring that their acts within the
framework of this
project do not infringe third parties rights.
4.
The
Community cannot be held liable for any consequences arising from the proper exercise
of the rights of the
Community under the
Rules for Participation or this
grant agreement.
36