FPA2016/EIT/EIT InnoEnergy
Ref.:
FRAMEWORK PARTNERSHIP AGREEMENT
(Consolidated version of 20 December 2017)
FPA2016/EIT/EIT InnoEnergy
This ‘Framework Partnership Agreement’ is b etween the following parties:
on the one part,
The European Institute of Innovation and Technology ('the EIT')
represented for the purposes of signature of this Framework Partnership Agreement by
Interim Director, Martin KERN
and
on the other part,
1. The Knowledge and Innovation Community Legal Entity ('the KIC LE’):
KIC InnoEnergy SE (‘EIT InnoEnergy’), a Societas Europea duly incorporated under the Laws of
The Netherlands with registered office located at the John F. Kennedylaan 2 6E Verdieping,
5612 AB Eindhoven, The Netherlands, registered in the Trade Chamber of Eindhoven under
the number 51418886, represented for the purposes of signing the Framework Partnership
Agreement by its CEO, Diego PAVIA,
2. and the other Knowledge and Innovation Community ('KIC') Partners listed in Annex 2, if
they have signed their ‘Accession Form’ (see Annex 4 and Article 62),
Unless otherwise specified, references to ‘KIC Partner’ or ‘KIC Partners’ include the KIC LE.
The parties referred to above have agreed to enter into the framework partnership under the
terms and conditions below.
The Framework Partnership Agreement is composed of:
Terms and Conditions
Annex 1 Strategic Agenda of the KIC
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Annex 2 List of KIC Partners
Annex 3
Model Specific Agreement
Annex 1 Description of the specific action
Annex 2 Estimated budget
Annex 3 Model for the financial statements
Annex 4 Model for the certificate on the financial statements
Annex 5 Unit costs for SME owners/natural beneficiaries without salary
Annex 4 Accession Forms
Annex 4a
Declaration on joint and several liability of linked third parties. To be used if joint
and several liability has been requested by the EIT.
Annex 5
List of linked third parties
Annex 6
Model for the certificate on the methodology
Annex 7
List of international partners
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TERMS AND CONDITIONS
TABLE OF CONTENTS
CHAPTER 1 GENERAL
................................................................................................................................................... 6
ARTICLE 1 — SUBJECT MATTER OF THE AGREEMENT
........................................................................................... 6
CHAPTER 2 FRAMEWORK PARTNERSHIP
..................................................................................................................... 6
ARTICLE 2 — STRATEGIC AGENDA — AWARD OF SPECIFIC GRANTS — SPECIFIC AGREEMENTS – MAXIMUM EIT
FINANCIAL CONTRIBUTION
.................................................................................................... 6
ARTICLE 3 — DURATION AND STARTING DATE OF THE FRAMEWORK PARTNERSHIP
........................................... 7
ARTICLE 4 — RIGHTS AND OBLIGATIONS UNDER THE FRAMEWORK PARTNERSHIP
............................................. 7
ARTICLE 5 — SUSPENSION OF FRAMEWORK PARTNERSHIP IMPLEMENTATION
.................................................. 9
ARTICLE 6 — TERMINATION OF THE FRAMEWORK PARTNERSHIP AGREEMENT OR OF THE PARTICIPATION OF
ONE OR MORE KIC PARTNERS
............................................................................................... 9
CHAPTER 3 SPECIFIC GRANTS
.................................................................................................................................... 10
SECTION 1 SPECIFIC ACTIONS
............................................................................................................................... 10
ARTICLE 7 — SPECIFIC ACTIONS TO BE IMPLEMENTED – BUSINESS PLANS
........................................................ 10
ARTICLE 8 — DURATION OF THE SPECIFIC ACTIONS
........................................................................................... 10
ARTICLE 9 — ESTIMATED BUDGET AND BUDGET TRANSFERS
............................................................................ 10
SECTION 2
SPECIFIC GRANTS
....................................................................................................................... 11
ARTICLE 10 — GRANT AMOUNT, FORM OF GRANT, REIMBURSEMENT RATES AND FORMS OF COSTS
............. 11
ARTICLE 11 — ELIGIBLE AND INELIGIBLE COSTS
.................................................................................................. 13
SECTION 3 RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THE SPECIFIC GRANTS
...................................... 14
SUBSECTION 1 RIGHTS AND OBLIGATIONS RELATED TO IMPLEMENTING THE SPECIFIC ACTIONS
..................... 14
ARTICLE 12 — GENERAL OBLIGATION TO PROPERLY IMPLEMENT THE SPECIFIC ACTIONS
................................ 14
ARTICLE 13 — RESOURCES TO IMPLEMENT THE SPECIFIC ACTIONS – THIRD PARTIES INVOLVED IN THE SPECIFIC
ACTIONS
............................................................................................................................... 14
ARTICLE 14 — IMPLEMENTATION OF ACTION TASKS BY KIC PARTNERS NOT RECEIVING EIT FUNDING
............. 14
ARTICLE 15 — PURCHASE OF GOODS, WORKS OR SERVICES
.............................................................................. 14
ARTICLE 16 — USE OF IN‐KIND CONTRIBUTIONS PROVIDED BY THIRD PARTIES AGAINST PAYMENT
................. 14
ARTICLE 17 — USE OF IN‐KIND CONTRIBUTIONS PROVIDED BY THIRD PARTIES FREE OF CHARGE
.................... 15
ARTICLE 18 — IMPLEMENTATION OF ACTION TASKS BY SUBCONTRACTORS
..................................................... 15
ARTICLE 19 — IMPLEMENTATION OF ACTION TASKS BY LINKED THIRD PARTIES
............................................... 15
ARTICLE 19a – IMPLEMENTATION OF ACTION TASKS BY INTERNATIONAL PARTNERS
........................................ 15
ARTICLE 20 — FINANCIAL SUPPORT TO THIRD PARTIES
...................................................................................... 16
ARTICLE 21 — SUPPORT TO OR IMPLEMENTATION OF TRANS‐NATIONAL PROJECTS
........................................ 16
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ARTICLE 22 — PROVISION OF TRANS‐NATIONAL OR VIRTUAL ACCESS TO RESEARCH INFRASTRUCTURES
........ 16
SUBSECTION 2
RIGHTS AND OBLIGATIONS RELATED TO THE GRANT ADMINISTRATION
............................ 16
ARTICLE 23 – GENERAL OBLIGATION TO INFORM
............................................................................................... 16
ARTICLE 24 — KEEPING RECORDS — SUPPORTING DOCUMENTATION
.............................................................. 17
ARTICLE 25 — SUBMISSION OF DELIVERABLES
................................................................................................... 19
ARTICLE 26 — REPORTING — PAYMENT REQUESTS
........................................................................................... 19
ARTICLE 27 — PAYMENTS AND PAYMENT ARRANGEMENTS
.............................................................................. 19
ARTICLE 28 — CHECKS, REVIEWS, AUDITS AND INVESTIGATIONS — EXTENSION OF FINDINGS
......................... 19
ARTICLE 29 —MONITORING AND EXTERNAL EVALUATION OF THE KIC
.............................................................. 24
SUBSECTION 3
RIGHTS AND OBLIGATIONS RELATED TO BACKGROUND AND RESULTS OF THE SPECIFIC
ACTIONS
............................................................................................................................... 25
SUBSUBSECTION 1 GENERAL
............................................................................................................................... 25
ARTICLE 29a — MANAGEMENT OF INTELLECTUAL PROPERTY
............................................................................ 25
SUBSUBSECTION 2 RIGHTS AND OBLIGATIONS RELATED TO BACKGROUND
...................................................... 25
ARTICLE 30 — AGREEMENT ON BACKGROUND
.................................................................................................. 25
ARTICLE 31 — ACCESS RIGHTS TO BACKGROUND
............................................................................................... 26
SUBSUBSECTION 3 RIGHTS AND OBLIGATIONS RELATED TO RESULTS
................................................................ 28
ARTICLE 32 — OWNERSHIP OF RESULTS
............................................................................................................. 28
ARTICLE 33 — PROTECTION OF RESULTS — VISIBILITY OF EU FUNDING
............................................................ 30
ARTICLE 34 — EXPLOITATION OF RESULTS
.......................................................................................................... 31
ARTICLE 35 — DISSEMINATION OF RESULTS — OPEN ACCESS — VISIBILITY OF EIT AND EU FUNDING
............. 32
ARTICLE 36 — TRANSFER AND LICENSING OF RESULTS
...................................................................................... 34
ARTICLE 37 — ACCESS RIGHTS TO RESULTS
........................................................................................................ 35
SUBSECTION 4
OTHER RIGHTS AND OBLIGATIONS
..................................................................................... 37
ARTICLE 38 — RECRUITMENT AND WORKING CONDITIONS FOR RESEARCHERS
................................................ 37
ARTICLE 39 — GENDER EQUALITY
....................................................................................................................... 37
ARTICLE 40 — ETHICS AND RESEARCH INTEGRITY
.............................................................................................. 38
ARTICLE 41 — CONFLICT OF INTERESTS
.............................................................................................................. 40
ARTICLE 42 — CONFIDENTIALITY
........................................................................................................................ 40
ARTICLE 43 — SECURITY‐RELATED OBLIGATIONS
............................................................................................... 42
ARTICLE 44 — PROMOTING THE KIC — VISIBILITY OF THE EIT AND EU FUNDING
.............................................. 43
ARTICLE 45 — PROCESSING OF PERSONAL DATA
................................................................................................ 45
ARTICLE 46 — ASSIGNMENTS OF CLAIMS FOR PAYMENT AGAINST THE EIT
....................................................... 46
SECTION 4 DIVISION OF KIC PARTNERS' ROLES AND RESPONSIBILITIES
............................................................... 47
ARTICLE 47 — DIVISION OF KIC PARTNERS’ ROLES AND RESPONSIBILITIES
........................................................ 47
SECTION 5
REJECTION OF COSTS — REDUCTION OF THE GRANT — RECOVERY — SANCTIONS — DAMAGES
— SUSPENSION — TERMINATION — FORCE MAJEURE
............................................................ 48
SUBSECTION 1 REJECTION OF COSTS — REDUCTION OF THE GRANT — RECOVERY — SANCTIONS
.................. 48
ARTICLE 48 — REJECTION OF INELIGIBLE COSTS
................................................................................................. 49
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ARTICLE 49 — REDUCTION OF THE GRANT
......................................................................................................... 49
ARTICLE 50 — RECOVERY OF UNDUE AMOUNTS
................................................................................................ 51
ARTICLE 51 — ADMINISTRATIVE SANCTIONS
...................................................................................................... 55
SUBSECTION 2 LIABILITY FOR DAMAGES
............................................................................................................. 55
ARTICLE 52 — LIABILITY FOR DAMAGES
.............................................................................................................. 55
SUBSECTION 3 SUSPENSION AND TERMINATION
............................................................................................... 56
ARTICLE 53 — SUSPENSION OF PAYMENT DEADLINE
......................................................................................... 56
ARTICLE 54 — SUSPENSION OF PAYMENTS
........................................................................................................ 57
ARTICLE 55 — SUSPENSION OF THE IMPLEMENTATION OF THE SPECIFIC ACTION
............................................ 58
ARTICLE 56 — TERMINATION OF THE SPECIFIC AGREEMENTS OR OF THE PARTICIPATION OF ONE OR MORE KIC
PARTNERS
............................................................................................................................ 60
SUBSECTION 4 FORCE MAJEURE
......................................................................................................................... 68
ARTICLE 57 — FORCE MAJEURE
.......................................................................................................................... 68
CHAPTER 4
FINAL PROVISIONS
..................................................................................................................... 69
ARTICLE 58 — COMMUNICATIONS BETWEEN THE PARTIES SIGNING THE FRAMEWORK PARTNERSHIP
AGREEMENT
........................................................................................................................ 69
ARTICLE 59 — INTERPRETATION OF THE FRAMEWORK PARTNERSHIP AGREEMENT AND THE SPECIFIC
AGREEMENTS
...................................................................................................................... 70
ARTICLE 60 — CALCULATION OF PERIODS, DATES AND DEADLINES
................................................................... 71
ARTICLE 61 — AMENDMENTS TO THE FRAMEWORK PARTNERSHIP AGREEMENT AND THE SPECIFIC
AGREEMENTS
...................................................................................................................... 71
ARTICLE 62 — ACCESSION TO THE FRAMEWORK PARTNERSHIP AGREEMENT AND THE SPECIFIC AGREEMENTS
............................................................................................................................................. 72
ARTICLE 63 — APPLICABLE LAW AND SETTLEMENT OF DISPUTES
...................................................................... 73
ARTICLE 64 — ENTRY INTO FORCE OF THE FRAMEWORK PARTNERSHIP AGREEMENT
...................................... 73
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CHAPTER 1 GENERAL
ARTICLE 1 — SUBJECT MATTER OF THE AGREEMENT
This Agreement establishes a long term cooperation ('framework partnership') and sets out its
terms and conditions and the general terms and conditions and rights and obligations
applicable to the specific grants that may be awarded by the EIT for specific actions under the
framework partnership.
CHAPTER 2 FRAMEWORK PARTNERSHIP
ARTICLE 2 — STRATEGIC AGENDA — AWARD OF SPECIFIC GRANTS — SPECIFIC AGREEMENTS –
MAXIMUM EIT FINANCIAL CONTRIBUTION
2.1 Strategic Agenda
The strategy, objectives, expected impact and activities under the framework partnership are
set out in the 'Strategic Agenda' in Annex 1.
2.2 Award of specific grants for specific actions — Specific Agreements
The EIT may award 'specific grants' for ‘specific actions’ to be implemented under the
framework partnership.
The specific action consists of ‘KIC added value activities’ under a Business Plan for a given time
period. In accordance with Article 2(11) of the EIT Regulation, ‘KIC added‐value activities’
means activities carried out by KIC Partners, contributing to the integration of the knowledge
triangle of higher education, research and innovation, including the establishment,
administrative and coordination activities of the KICs, and contributing to the overall objectives
of the EIT.
In order to obtain proposals for specific grants, the EIT will consult the KIC LE on the basis of
an invitation to submit a proposal that sets out the award criteria it will apply.
The EIT will decide on the award of the specific grants following an evaluation of the proposal
and a competitive review across KICs. The proposal consists of a Business Plan, including short,
mid and long‐term objectives and targets, key performance indicators, and describing the KIC
activities which consist of KIC added value activities to be supported by the specific grant and
KIC complementary activities having a clear link with at least one KIC added value activity and
not financed from the EIT contribution.
If the EIT decides to award a specific grant, it will propose the KIC LE to conclude a 'Specific
Agreement (SGA)' (see Annex 3).
By the signature of the Specific Agreement by the KIC LE and by the signature of the Accession
Form by the KIC Partners, the KIC Partners accept the specific grant and agree to implement
the specific action under their own responsibility, without prejudice to and in accordance with
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Article 47.1, and in accordance with the Framework Partnership Agreement and this Specific
Agreement, with all the obligations and conditions they set out.
Specific Agreements must be concluded before the end of the framework partnership (see
Article 3).
After the end of the framework partnership or its termination, the Framework Partnership
Agreement continues to apply to specific actions that are implemented under Specific
Agreements which have entered into force before end of the duration.
2.3 Maximum EIT financial contribution
The sum of the final amounts of the grants (see Article 10.3) under the specific grant
agreements signed under this Framework Partnership Agreement until 31 December 2022 may
not exceed 25% of the KIC overall funding.
The KIC overall funding consists of the costs incurred by the KIC Partners, their linked third
parties (see Article 19) and/or third parties receiving financial support (see Article 20) in
implementing the KIC activities (KIC added value activities and KIC complementary activities)
as described in the Business Plans (see Annex 1 SGA).
The costs of KIC complementary activities shall be
‐
proportionate to the cost of KIC added value activities and/or to the expected impact
in furthering the mission of a framework partnership (i.e. the relative weight of KIC
complementary activities within KIC activities must be suitable and reasonable to
achieve the objectives of the activity);
‐
incurred after the designation date of the framework partnership;
‐
identifiable and verifiable.
If the sum of the final amount of the grants exceeds 25% of the KIC overall funding, the EIT will
recover the difference at the time of the last payment of the balance of a grant awarded under
this Framework Partnership Agreement until 31 December 2022 (see Article 50).
ARTICLE 3 — DURATION AND STARTING DATE OF THE FRAMEWORK PARTNERSHIP
The Framework Partnership Agreement is concluded for a period of 7 years as of its entry into
force (see Article 64). This period may be extended.
ARTICLE 4 — RIGHTS AND OBLIGATIONS UNDER THE FRAMEWORK PARTNERSHIP
4.1 General obligation to properly implement the framework partnership
Without prejudice to and in accordance with Article 47.1, the KIC Partners must respect the
objectives of the framework partnership and implement it as described in Annex 1 and
endeavour to achieve those objectives also in the specific actions.
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The KIC Partners must maintain relations of mutual co‐operation and regular and transparent
exchanges of information with the EIT on:
- the implementation and follow‐up of the Strategic Agenda, the Business Plans and the
specific grants and
- other matters of common interest related to the Framework Partnership Agreement.
The KIC Partners must implement the framework partnership in compliance with Articles 39,
40, 41, 42, 44, 45, 52 —
mutatis mutandis. 4.2 KIC Internal Agreement
The KIC Partners must have internal arrangements regarding their operation and co‐ordination
to ensure that the framework partnership and the specific actions are implemented properly.
These internal arrangements must be set out in writing and may cover:
- internal organisation of the KIC, notably governance arrangements reflecting the
knowledge triangle of higher education, research and innovation, and openness to new
KIC Partners if they add value to the KIC;
- the principles of good governance;
- distribution of EIT funding;
- additional rules on rights and obligations related to background and results (including
whether access rights remain or not, if a KIC Partner is in breach of its obligations) (see
Subsection 3 of Chapter 3);
- settlement of internal disputes;
- liability, indemnification and confidentiality arrangements between the KIC Partners.
These internal arrangements shall be included in the ‘Internal Agreements’ between the KIC LE
and other KIC Partners or shall be included in the statutes or by‐laws of the KIC LE.
The internal arrangements must not contain any provision contrary to the Framework
Partnership Agreement and the Specific Agreements.
4.3 EIT Labelled degrees and diplomas
4.3.1 Degrees and diplomas relating to the KIC education and training activities awarded by
Higher Education Institutions participating in the KIC may be labelled as EIT degrees and
diplomas, provided they fulfil the following quality criteria:
a. Robust entrepreneurship education
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b. Highly integrated, innovative "learning by doing" curricula
c. Mobility, European dimension and openness to the world
d. Outreach strategy and access policy
4.3.2 The EIT, in close cooperation with the KIC LE, must define the modalities for
assessment, labelling and follow up review and governance of EIT labelled degrees and
diplomas. EIT labelled degrees and diplomas must build on the experience gained in the
context of the European Higher Education Area.
4.3.3 Education and training activities not being awarded with the EIT label must not use the
EIT label. Such activities must use the KIC brand adopted by the EIT.
ARTICLE 5 — SUSPENSION OF FRAMEWORK PARTNERSHIP IMPLEMENTATION
The parties may suspend the implementation of the framework partnership on the grounds
and according to the procedure —
mutatis mutandis — set out in Article 55.
If the framework partnership implementation is suspended, the implementation of the specific
actions is also suspended (see Article 55), from the date of suspension of the framework
partnership.
ARTICLE 6 — TERMINATION OF THE FRAMEWORK PARTNERSHIP AGREEMENT OR OF THE
PARTICIPATION OF ONE OR MORE KIC PARTNERS
6.1
Termination of the Agreement
The parties signing the Framework Partnership Agreement may terminate the Framework
Partnership Agreement at any time.
The party terminating the Framework Partnership Agreement must formally notify termination
to the other party, stating the date the termination will take effect. This date must be after the
notification.
Without prejudice to and in accordance with Article 47.1, termination of the Framework
Partnership Agreement does not release the parties from their obligations under Specific
Agreements which have entered into force before the date on which the termination takes
effect, unless they have been terminated.
Neither party may claim damages due to termination by the other party.
6.2
Termination of the participation of one or more KIC Partners
The parties may terminate participation of one or more KIC Partners in the framework
partnership on the grounds and according to the procedures –
mutatis mutandis – set out in
Article 56.2.1, 56.3.1 and 56.3.2.
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The KIC LE must submit a request for amendment (see Article 61) to adapt Annex 1 and, if
necessary, the addition of one or more new KIC Partners (see Article 62).
If the request for amendment is rejected by the EIT, the Framework Partnership Agreement
may be terminated (see above).
Without prejudice to and in accordance with Article 47.1, termination of participation in the
framework partnership does not release the KIC Partner concerned from its obligations under
Specific Agreements. It cannot however participate in specific actions for which specific grants
are awarded after the date on which the termination takes effect.
CHAPTER 3 SPECIFIC GRANTS
SECTION 1 SPECIFIC ACTIONS
ARTICLE 7 — SPECIFIC ACTIONS TO BE IMPLEMENTED – BUSINESS PLANS
The specific actions to be implemented are set out in the Specific Agreements (see Article 2
and Annex 1 SGA).
The Business Plan containing the specific action to be implemented as well as the KIC
complementary activities are set out in the Specific Agreement (see Annex 1 SGA).
ARTICLE 8 — DURATION OF THE SPECIFIC ACTIONS
The duration of the specific actions is set out in the Specific Agreements (see Article 3 SGA).
ARTICLE 9 — ESTIMATED BUDGET AND BUDGET TRANSFERS
9.1 Estimated budget
The estimated budget for the specific action is set out in Annex 2 to the Specific Agreements.
It contains the estimated eligible costs, broken down by KIC Partners and linked third party and
budget category (Articles 4, 5, 6 SGA and Article 19 FPA). It also shows, if applicable, the
estimated costs of the KIC Partners not receiving EIT funding (see Article 7 SGA) and of the
international partners (see Article 12a SGA).
9.2 Budget transfers
The estimated budget breakdown indicated in Annex 2 to the Specific Agreements may be
adjusted – without an amendment (see Article 61) – by transfers of amounts between KIC
Partners, budget categories and/or forms of costs set out in Annex 2 to the Specific
Agreements, if the specific action is implemented as described in Annex 1 to the Specific
Agreements.
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However, the KIC Partners may not add costs relating to subcontracts not provided for in Annex
1 to the Specific Agreements, unless such additional subcontracts are approved by an
amendment or in accordance with Article 11 SGA.
Moreover, lump sums set out in Annex 1 to the Specific Agreement can never be adjusted.
SECTION 2
SPECIFIC GRANTS
ARTICLE 10 — GRANT AMOUNT, FORM OF GRANT, REIMBURSEMENT RATES AND FORMS OF
COSTS
10.1 Maximum grant amount
The maximum grant amount for the specific grants is set out in the Specific Agreements (see
Article 4 SGA).
10.2 Form of grant, reimbursement rates and form(s) of costs
The form of the grant, reimbursement rate(s), estimated eligible costs and the form(s) of costs
of the specific grants are set out in the Specific Agreements (see Article 4 SGA).
10.3 Final grant amount — Calculation
The final grant amount of a specific grant depends on the actual extent to which the specific
action is implemented in accordance with the terms and conditions of the Framework
Partnership Agreement and the Specific Agreement concerned.
This amount is calculated by the EIT — when the payment of the balance is made (see Article
17 SGA) — in the following steps:
Step 1 – Application of the reimbursement rates to the eligible costs
Step 2 – Limit to the maximum grant amount
Step 3 – Reduction due to the no‐profit rule
Step 4 – Reduction due to substantial errors, irregularities or fraud or serious breach of
obligations
10.3.1 Step 1 — Application of the reimbursement rates to the eligible costs
The reimbursement rate (see Article 4 SGA) is applied to the eligible costs (actual costs, unit
costs, flat‐rate costs and lump sum costs; see Article 5 SGA) declared by the KIC Partners and
the linked third parties (see Article 16 SGA) and approved by the EIT (see Article 17 SGA).
10.3.2 Step 2 — Limit to the maximum grant amount
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If the amount obtained following Step 1 is higher than the maximum grant amount (see Article
4 SGA), it will be limited to the latter.
10.3.3 Step 3 — Reduction due to the no‐profit rule
The specific grant must not produce a profit.
‘Profit’ means the surplus of the amount obtained following Steps 1 and 2 plus the specific
action's total receipts, over the specific action's total eligible costs.
The ‘specific action's total eligible costs’ are the consolidated total eligible costs approved by
the EIT.
The ‘specific action's total receipts’ are the consolidated total receipts generated during its
duration (see Article 3 SGA).
The following are considered receipts:
a) income generated by the specific action; if the income is generated from selling
equipment or other assets purchased for the specific action under the Specific
Agreement, the receipt is up to the amount declared as eligible under the Specific
Agreement;
b) financial contributions given by third parties to the KIC Partner or to a linked third
party specifically to be used for the specific action, and
c) in‐kind contributions provided by third parties free of charge specifically to be used
for the specific action, if they have been declared as eligible costs.
The following are however not considered receipts:
(a) income generated by exploiting the specific action’s results (see Article 34);
(b) financial contributions by third parties, if they may be used to cover costs other than
the eligible costs (see Article 5 SGA);
(c) financial contributions by third parties with no obligation to repay any amount unused
at the end of the period set out in Article 3 SGA.
If there is a profit, it will be deducted from the amount obtained following Steps 1 and 2.
10.3.4 Step 4 — Reduction due to substantial errors, irregularities or fraud or serious breach of
obligations — Reduced grant amount — Calculation
If the specific grant is reduced (see Article 49), the EIT will calculate the reduced grant amount
by deducting the amount of the reduction (calculated in proportion to the seriousness of the
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errors, irregularities or fraud or breach of obligations, in accordance with Article 49.2) from the
maximum grant amount (see Article 4 SGA).
The final grant amount will be the lower of the following two:
‐
the amount obtained following Steps 1 to 3 or
‐
the reduced grant amount following Step 4.
10.4 Revised final grant amount — Calculation
If — after the payment of the balance (in particular, after checks, reviews, audits or
investigations; see Article 28) — the EIT rejects costs (see Article 48) or reduces the specific
grant (see Article 49), it will calculate the ‘revised final grant amount’ for the KIC Partner
concerned by the findings.
This amount is calculated by the EIT on the basis of the findings, as follows:
‐
in case of rejection of costs: by applying the reimbursement rate to the revised eligible
costs approved by the EIT for the KIC Partner concerned;
‐
in case of reduction of the specific grant: by calculating the concerned KIC Partner’s
share in the grant amount reduced in proportion to the seriousness of the errors,
irregularities or fraud or breach of obligations (see Article 49.2).
In case of rejection of costs and reduction of the specific grant: the revised final grant amount
for the KIC Partner concerned will be the lower of the two amounts above.
ARTICLE 11 — ELIGIBLE AND INELIGIBLE COSTS
11.1
Eligible costs
The general and specific conditions for costs to be eligible under the specific grants are set out
in the Specific Agreements (see Article 5 SGA).
11.2 Ineligible costs
The conditions under which costs are considered ineligible under the specific grants are set
out in the Specific Agreements (see Article 5 SGA).
11.3
Consequences of declaration of ineligible costs
Declared costs that are ineligible will be rejected (see Article 48).
This may also lead to any of the other measures described in Section 5.
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SECTION 3 RIGHTS AND OBLIGATIONS OF THE PARTIES UNDER THE SPECIFIC GRANTS
SUBSECTION 1 RIGHTS AND OBLIGATIONS RELATED TO IMPLEMENTING THE SPECIFIC ACTIONS
ARTICLE 12 — GENERAL OBLIGATION TO PROPERLY IMPLEMENT THE SPECIFIC ACTIONS
12.1 General obligation to properly implement the specific actions
Without prejudice to and in accordance with Article 47.1, the KIC Partners must implement the
specific actions as described in Annex 1 to the Specific Agreements and in compliance with the
provisions of the Framework Partnership Agreement and the Specific Agreements and all legal
obligations applicable under EU, international and national law.
Annex 1 of the Specific Agreement indicates the KIC Partners participating in the
implementation of each KIC added value activity.
12.2
Consequences of non‐compliance
If a KIC Partner breaches any of its obligations under this Article, the specific grants may be
reduced (see Article 49).
Such breaches may also lead to any of the other measures described in Section 5.
ARTICLE 13 — RESOURCES TO IMPLEMENT THE SPECIFIC ACTIONS – THIRD PARTIES INVOLVED
IN THE SPECIFIC ACTIONS
The rules on the resources to implement the specific actions and involvement of third parties
in the action are set out in the Specific Agreements (see Article 6 SGA).
ARTICLE 14 — IMPLEMENTATION OF ACTION TASKS BY KIC PARTNERS NOT RECEIVING EIT
FUNDING
The rules for the implementation of tasks forming part of the specific actions by KIC Partners
not receiving EIT funding are set out in the Specific Agreements (see Article 7 SGA).
ARTICLE 15 — PURCHASE OF GOODS, WORKS OR SERVICES
The rules for the purchase of goods works and services are set out in the Specific Agreements
(see Article 8 SGA).
ARTICLE 16 — USE OF IN‐KIND CONTRIBUTIONS PROVIDED BY THIRD PARTIES AGAINST
PAYMENT
The rules for the use of in‐kind contributions provided by third parties against payment are set
out in the Specific Agreements (see Article 9 SGA).
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ARTICLE 17 — USE OF IN‐KIND CONTRIBUTIONS PROVIDED BY THIRD PARTIES FREE OF CHARGE
The rules for the use of in‐kind contributions provided by third parties free of charge are set
out in the Specific Agreements (see Article 10 SGA).
ARTICLE 18 — IMPLEMENTATION OF ACTION TASKS BY SUBCONTRACTORS
The rules for subcontracting action tasks are set out in the Specific Agreements (see Article 11
SGA).
ARTICLE 19 — IMPLEMENTATION OF ACTION TASKS BY LINKED THIRD PARTIES
The affiliated entities1 and third parties with a legal link to a KIC Partner2 (‘linked third parties’)
listed in Annex 5 may implement action tasks attributed to them in Annex 1 to a Specific
Agreement.
If joint and several liability has been requested by the EIT, a linked third party listed in Annex 5
may implement action tasks if it has accepted joint and several liability with the KIC Partner
(see Annex 4a).
The rules for calling on linked third parties are set out in the Specific Agreements (see Article
12 SGA).
ARTICLE 19a – IMPLEMENTATION OF ACTION TASKS BY INTERNATIONAL PARTNERS
19a.1 Rules for calling upon international partners to implement part of the action
1 For a definition, see Article 2.1(2) of Regulation (EU) No 1290/2013 of the European Parliament and of the
Council of 11 December 2013 laying down the rules for participation and dissemination in “Horizon 2020 ‐ the
Framework Programme for Research and Innovation (2014‐2020)” (‘Rules for Participation Regulation No
1290/2013’) (OJ L 347, 20.12.2013 p.81): ‘affiliated entity’ means any legal entity that is:
- under the direct or indirect control of a participant, or
- under the same direct or indirect control as the participant, or
- directly or indirectly controlling a participant.
‘Control’ may take 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.
However, the following relationships between legal entities shall not in themselves constitute controlling
relationships:
a) the same public investment corporation, institutional investor or venture‐capital company has a
direct or indirect holding of more than 50% of the nominal value of the issued share capital or a
majority of voting rights of the shareholders or associates;
the legal entities concerned are owned or supervised by the same public body.
2 ‘Third party with a legal link to a partner’ is any legal entity which has a legal link to the partner implying
collaboration that is not limited to the action.
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The international partners3 listed in Annex 7 may implement action tasks attributed to them in
Annex 1 to the Specific Agreement.
The rules for calling on international partners are set out in the Specific Agreements (see Article
12a SGA).
ARTICLE 20 — FINANCIAL SUPPORT TO THIRD PARTIES
The rules for providing financial support to third parties are set out in the Specific Agreements
(see Article 13 SGA).
ARTICLE 21 — SUPPORT TO OR IMPLEMENTATION OF TRANS‐NATIONAL PROJECTS
Not applicable
ARTICLE 22 — PROVISION OF TRANS‐NATIONAL OR VIRTUAL ACCESS TO RESEARCH
INFRASTRUCTURES
Not applicable
SUBSECTION 2 RIGHTS AND OBLIGATIONS RELATED TO THE GRANT ADMINISTRATION
ARTICLE 23 – GENERAL OBLIGATION TO INFORM
23.1
General obligation to provide information upon request
The KIC Partners must provide — during implementation of the specific actions or afterwards
and in accordance with Article 47.1— any information requested in order to verify eligibility of
the costs, proper implementation of the specific actions and compliance with any other
obligations under the Framework Partnership Agreement and the Specific Agreements.
23.2
Obligation to keep information up to date and to inform about events and circumstances
likely to affect the Agreements
Each KIC Partner must immediately inform the KIC LE — which must immediately inform the
EIT and the other KIC Partners — of any of the following:
(a) events which are likely to affect significantly or delay the implementation of a specific
action or the EIT's financial interests, in particular:
(i) changes in its legal, financial, technical, organisational or ownership situation or
those of its linked third parties and
(ii) changes in the name, address, legal form, organisation type of its linked third
parties;
3 ‘International partner’ is any legal entity established in a non‐associated third country which is not eligible for
funding under Article 10 of the Rules for Participation Regulation No 1290/2013.
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(b) circumstances affecting:
(i) the decision to award a specific grant and the Framework Partnership Agreement,
or
(ii) compliance with requirements under the Framework Partnership Agreement or
the Specific Agreements.
23.3
Consequences of non‐compliance
If a KIC Partner breaches any of its obligations under this Article, the specific grant may be
reduced (see Article 49).
Such breaches may also lead to any of the other measures described in Section 5.
ARTICLE 24 — KEEPING RECORDS — SUPPORTING DOCUMENTATION
24.1
Obligation to keep records and other supporting documentation
For each specific grant, the KIC Partners must — for a period of five years after the payment of
the balance — keep records and other supporting documentation in order to prove the proper
implementation of the specific action and the costs they declare as eligible.
They must make them available upon request (see Article 23) or in the context of checks,
reviews, audits or investigations (see Article 28).
If there are on‐going checks, reviews, audits, investigations, litigation or other pursuits of
claims under a Specific Agreement (including the extension of findings; see Article 28), the KIC
Partners must keep the records and other supporting documentation until the end of these
procedures.
The KIC Partners must keep the original documents. Digital and digitalised documents are
considered originals if they are authorised by the applicable national law. The EIT may accept
non‐original documents if it considers that they offer a comparable level of assurance.
24.1.1 Records and other supporting documentation on the scientific and technical
implementation
The KIC Partners must keep records and other supporting documentation on the
implementation of the specific action in line with the accepted standards in the respective
field.
24.1.2 Records and other documentation to support the eligible costs declared
The KIC Partners must keep the records and documentation supporting the eligible costs
declared, in particular the following:
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(a) for actual costs: adequate records and other supporting documentation to prove the
eligible costs declared, such as contracts, subcontracts, invoices and accounting
records. In addition, the KIC LE or KIC Partners' usual cost accounting practices and
internal control procedures must enable direct reconciliation between the amounts
declared, the amounts recorded in their accounts and the amounts stated in the
supporting documentation;
(b) for unit costs: adequate records and other supporting documentation to prove the
number of units declared. KIC Partners do not need to identify the actual eligible costs
covered or to keep or provide supporting documentation (such as accounting
statements) to prove the amount per unit.
In addition, for unit costs calculated in accordance with the KIC Partner's usual cost
accounting practices, the KIC Partners must keep adequate records and documentation
to prove that the cost accounting practices used comply with the eligibility conditions
set out in the Specific Agreements (see Article 5 SGA).
The KIC Partners and their linked third parties may submit to the EIT, for approval by
the Commission, a certificate (drawn up in accordance with Annex 6) stating that their
usual cost accounting practices comply with these conditions (‘certificate on the
methodology’). If the certificate is approved, costs declared in line with this
methodology will not be challenged subsequently, unless the KIC Partners have
concealed information for the purpose of the approval.
(c) for flat‐rate costs: adequate records and other supporting documentation to prove the
eligibility of the costs to which the flat‐rate is applied. The KIC Partners do not need to
identify the costs covered or provide supporting documentation (such as accounting
statements) to prove the amount declared at a flat‐rate.
(d) for lump sum costs: adequate records and other supporting documentation to prove
that the corresponding tasks or part of the specific action as described in Annex 1 to
the Specific Agreement concerned were implemented properly. The KIC Partners do
not need to identify the actual eligible costs covered or provide supporting
documentation (such as accounting statements) to prove the amount declared as a
lump sum.
In addition, for personnel costs (declared as actual costs or on the basis of unit costs), the KIC
Partners must keep time records for the number of hours declared. The time records must be
in writing and approved by the persons working on the specific action and their supervisors, at
least monthly. In the absence of reliable time records of the hours worked on the specific
action, the EIT may accept alternative evidence supporting the number of hours declared, if it
considers that it offers an adequate level of assurance.
As an exception, for persons working exclusively on the specific action, there is no need to keep
time records, if the KIC Partner signs a declaration confirming that the persons concerned have
worked exclusively on the specific action.
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For costs declared by linked third parties (see Article 19), it is the KIC Partner that must keep
the originals of the financial statements and the certificates on the financial statements of the
linked third parties.
24.2
Consequences of non‐compliance
If a KIC Partner breaches any of its obligations under this Article, costs of the specific action
insufficiently substantiated will be ineligible (see Article 5 SGA) and will be rejected (see Article
48), and the specific grant may be reduced (see Article 49).
Such breaches may also lead to any of the other measures described in Section 5.
ARTICLE 25 — SUBMISSION OF DELIVERABLES
The rules on submission of deliverables for the specific grants are set out in the Specific
Agreements (see Article 15 SGA).
ARTICLE 26 — REPORTING — PAYMENT REQUESTS
The rules on reporting and payment requests for the specific grants are set out in the Specific
Agreements (see Article 16 SGA).
ARTICLE 27 — PAYMENTS AND PAYMENT ARRANGEMENTS
The rules on payments and payment arrangements for the specific grants are set out in the
Specific Agreements (see Article 17 SGA).
ARTICLE 28 — CHECKS, REVIEWS, AUDITS AND INVESTIGATIONS — EXTENSION OF FINDINGS
28.1
Checks, reviews and audits by the EIT and the Commission
28.1.1 Right to carry out checks
The EIT will — during the implementation of a specific action or afterwards — check the proper
implementation of the specific action and compliance with the obligations under the
Framework Partnership Agreement and the Specific Agreement, including assessing
deliverables and reports.
For this purpose the EIT may be assisted by external persons or bodies.
The EIT may also request additional information in accordance with Article 23. The EIT may
request KIC Partners to provide such information to it directly.
Information provided must be accurate, precise and complete and in the format requested,
including electronic format.
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28.1.2 Right to carry out reviews
The EIT may — during the implementation of a specific action or afterwards — carry out
reviews on the proper implementation of the specific action (including assessment of
deliverables and reports), compliance with the obligations under the Framework Partnership
Agreement and the Specific Agreement.
Reviews may be started up to two years after the payment of the balance. They will be formally
notified to the KIC LE or KIC Partner concerned and will be considered to have started on the
date of the formal notification.
If the review is carried out on a third party (see Articles 15 to 22), the KIC Partner concerned
must inform the third party.
The EIT may carry out reviews directly (using its own staff) or indirectly (using external persons
or bodies appointed to do so). It will inform the KIC LE or the KIC Partner concerned of the
identity of the external persons or bodies. They have the right to object to the appointment on
grounds of commercial confidentiality.
The KIC LE or KIC Partner concerned must provide — within the deadline requested — any
information and data in addition to deliverables and reports already submitted (including
information on the use of resources).
The KIC LE or KIC Partner concerned may be requested to participate in meetings, including
with external experts.
For on‐the‐spot reviews, the KIC Partners must allow access to their sites and premises,
including to external persons or bodies, and must ensure that information requested is readily
available.
Information provided must be accurate, precise and complete and in the format requested,
including electronic format.
On the basis of the review findings, a 'review report' will be drawn up.
The EIT will formally notify the review report to the KIC LE or KIC Partner concerned, which has
30 days to formally notify observations ('contradictory review procedure').
Reviews (including review reports) are in English.
28.1.3 Right to carry out audits
The EIT or the Commission may — during the implementation of a specific action or afterwards
— carry out audits on the proper implementation of the specific action and compliance with
the obligations under the Framework Partnership Agreement and the Specific Agreement.
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Audits may be started up to two years after the payment of the balance. They will be formally
notified to the KIC LE or KIC Partner concerned and will be considered to have started on the
date of the formal notification.
If the audit is carried out on a third party (see Articles 15 to 22), the KIC Partner concerned
must inform the third party.
The EIT or the Commission may carry out audits directly (using its own staff) or indirectly (using
external persons or bodies appointed to do so). It will inform the KIC LE or the KIC Partner
concerned of the identity of the external persons or bodies. They have the right to object to
the appointment on grounds of commercial confidentiality.
The KIC LE or the KIC Partner concerned must provide — within the deadline requested — any
information (including complete accounts, individual salary statements or other personal data)
to verify compliance with the Framework Partnership Agreement and Specific Agreements. The
EIT or the Commission may request KIC Partners to provide such information to it directly.
For on‐the‐spot audits, the KIC Partners must allow access to their sites and premises, including
to external persons or bodies, and must ensure that information requested is readily available.
Information provided must be accurate, precise and complete and in the format requested,
including electronic format.
On the basis of the audit findings, a 'draft audit report' will be drawn up.
The EIT or the Commission will formally notify the draft audit report to the KIC LE or the KIC
Partner concerned, which has 30 days to formally notify observations ('contradictory audit
procedure'). This period may be extended by the EIT or the Commission in justified cases.
The 'final audit report' will take into account observations by the KIC LE or KIC Partner
concerned. The report will be formally notified to it.
Audits (including audit reports) are in English.
The EIT or the Commission may also access the KIC Partners' statutory records for the
periodical assessment of unit costs, flat‐rate amounts or lump sums.
28.2
Investigations by the European Anti‐Fraud Office (OLAF)
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Under Regulations No 883/20134 and No 2185/965 (and in accordance with their provisions
and procedures), the European Anti‐Fraud Office (OLAF) may — at any moment during
implementation of a specific action or afterwards — carry out investigations, including on‐the‐
spot checks and inspections, to establish whether there has been fraud, corruption or any
other illegal activity under the Framework Partnership Agreement or Specific Agreement
affecting the financial interests of the EU.
28.3
Checks and audits by the European Court of Auditors (ECA)
Under Article 287 of the Treaty on the Functioning of the European Union (TFEU) and Article
111 of the EIT Financial Regulation6, the European Court of Auditors (ECA) may — at any
moment during implementation of a specific action or afterwards — carry out audits.
The ECA has the right of access for the purpose of checks and audits.
28.4
Checks, reviews, audits and investigations for international organisations
Not applicable
28.5
Consequences of findings in checks, reviews, audits and investigations —Extension of
findings
28.5.1 Findings in a specific grant
Findings in checks, reviews, audits or investigations carried out in the context of a specific grant
may lead to the rejection of ineligible costs (see Article 48), reduction of the specific grant (see
Article 49), recovery of undue amounts (see Article 50) or to any of the other measures
described in Section 5.
Rejection of costs or reduction of the specific grant after the payment of the balance will lead
to a revised final grant amount (see Article 4 SGA).
Findings in checks, reviews, audits or investigations may lead to a request for amendment for
the modification of Annex 1 to the Specific Agreement (see Article 61).
Checks, reviews, audits or investigations that find systemic or recurrent errors, irregularities,
fraud or breach of obligations may also lead to consequences in other EIT, EU or Euratom
grants awarded under similar conditions (‘extension of findings from the specific grant to other
grants’).
4 Regulation (EU, Euratom) No 883/2013 of the European Parliament and of the Council of 11 September 2013
concerning investigations conducted by the European Anti‐Fraud Office (OLAF) and repealing Regulation (EC)
No 1073/1999 of the European Parliament and of the Council and Council Regulation (Euratom) No 1074/1999
(OJ L 248, 18.09.2013, p. 1).
5 Council Regulation (Euratom, EC) No 2185/1996 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 irregularities (OJ L 292, 15.11.1996, p. 2).
6 Decision of the Governing Board of the European Institute of Innovation and Technology (EIT) of 27 December
2013 on adopting the financial regulation for the European Institute of Innovation and Technology
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Moreover, findings arising from an OLAF investigation may lead to criminal prosecution under
national law.
28.5.2 Findings in other grants
The EIT or the Commission may extend findings from other grants to a specific grant (‘extension
of findings from other grants to a specific grant’), if:
(a)
the KIC Partner concerned is found, in other EIT, EU or Euratom grants awarded
under similar conditions, to have committed systemic or recurrent errors,
irregularities, fraud or breach of obligations that have a material impact on the
specific grant and
(b)
those findings are formally notified to the KIC Partner concerned — together with
the list of grants affected by the findings — no later than two years after the
payment of the balance of the specific grant.
The extension of findings may lead to the rejection of costs (see Article 48) reduction of the
specific grant (see Article 49), recovery of undue amounts (see Article 50), suspension of the
action implementation (see Article 55) or termination of the specific grant (see Article 56).
28.5.3 Procedure
The EIT or the Commission will formally notify the KIC Partner concerned the systemic or
recurrent errors, and its intention to extend these audit findings together with the list of grants
affected.
28.5.3.1 If the findings concern eligibility of costs: the formal notification will include:
(a)
an invitation to submit observations on the list of grants affected by the findings;
(b)
the request to submit revised financial statements for all grants affected;
(c)
the correction rate for extrapolation established by the EIT or the Commission on the
basis of the systemic or recurrent errors, to calculate the amounts to be rejected if
the KIC Partner concerned:
(i) considers that the submission of revised financial statements is not possible or
practicable or
(ii) does not submit revised financial statements.
The KIC Partner concerned has 90 days from receiving notification to submit observations,
revised financial statements or to propose a duly substantiated alternative correction method.
This period may be extended by the EIT or the Commission in justified cases.
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The EIT or the Commission may then start a rejection procedure in accordance with Article 48,
on the basis of:
- the revised financial statements, if approved;
- the proposed alternative correction method, if accepted
or
- the initially notified correction rate for extrapolation, if it does not receive any
observations or revised financial statements, does not accept the observations or the
proposed alternative correction method or does not approve the revised financial
statements.
28.5.3.2 If the findings concern substantial errors, irregularities or fraud or serious breach of
obligations: the formal notification will include:
(a)
an invitation to submit observations on the list of grants affected by the findings and
(b)
the flat‐rate the EIT or the Commission intends to apply according to the principle
of proportionality.
The KIC Partner concerned has 90 days from receiving notification to submit observations or
to propose a duly substantiated alternative flat‐rate.
The EIT may then start a reduction procedure in accordance with Article 49, on the basis of:
- the proposed alternative flat‐rate, if accepted
or
- the initially notified flat rate, if it does not receive any observations or does not accept
the observations or the proposed alternative flat‐rate.
28.6
Consequences of non‐compliance
If a KIC Partner breaches any of its obligations under this Article, any insufficiently
substantiated costs of specific actions will be ineligible (see Article 5 SGA) and will be rejected
(see Article 48).
Such breaches may also lead to any of the other measures described in Section 5.
ARTICLE 29 —MONITORING AND EXTERNAL EVALUATION OF THE KIC
29.1
Right to monitor and evaluate the KIC
The EIT or the Commission may carry out interim and final evaluations of the output, results
and impact of the KIC.
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Evaluations may be started during implementation of a specific action and up to five years after
the payment of the balance. The evaluation is considered to start on the date of the formal
notification to the KIC LE or KIC Partners.
The EIT or the Commission may make these evaluations directly (using its own staff) or
indirectly (using external bodies or persons it has authorised to do so).
The KIC LE and KIC Partners must provide any information requested to evaluate its impact,
including information in electronic format.
29.2
Consequences of non‐compliance
If a KIC Partner breaches any of its obligations under this Article, the EIT may apply the
measures described in Section 5.
SUBSECTION 3 RIGHTS AND OBLIGATIONS RELATED TO BACKGROUND AND RESULTS OF THE
SPECIFIC ACTIONS
SUBSUBSECTION 1 GENERAL
ARTICLE 29a — MANAGEMENT OF INTELLECTUAL PROPERTY
29a.1 Obligation to take measures to implement the Commission Recommendation on the
management of intellectual property in knowledge transfer activities
KIC Partners that are universities or other public research organisations must take measures
to implement the principles set out in Points 1 and 2 of the Code of Practice annexed to the
Commission Recommendation on the management of intellectual property in knowledge
transfer activities.
This does not change the obligations set out in Subsubsections 2 and 3 of this Subsection.
The KIC Partners must ensure that researchers and third parties involved in the specific actions
are aware of them.
29a.2 Consequences of non‐compliance
If a KIC Partner breaches its obligations under this Article, the EIT may apply any of the
measures described in Section 5.
SUBSUBSECTION 2 RIGHTS AND OBLIGATIONS RELATED TO BACKGROUND
ARTICLE 30 — AGREEMENT ON BACKGROUND
30.1
Agreement on background
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‘Background’ means any data, know‐how or information held by any KIC Partner — whatever
its form or nature (tangible or intangible), including any rights such as intellectual property
rights — that:
(a) is held by the KIC Partners before they entered into the Specific Agreement concerned
or no later than before the commencement of the particular KIC added value activity
and
(b) is needed to implement the KIC added‐value activities in which they participate under
the specific action or exploit the results thereof.
The KIC Partners must identify and agree (in writing) on the background for the KIC added value
activities in which they participate under the specific action (‘agreement on background’).
30.2
Consequences of non‐compliance
If a KIC Partner breaches any of its obligations under this Article, the grant may be reduced
(see Article 49).
Such breaches may also lead to any of the other measures described in Section 5.
ARTICLE 31 — ACCESS RIGHTS TO BACKGROUND
31.1
Exercise of access rights — Waiving of access rights — No sub‐licensing
To exercise access rights, this must first be requested in writing (‘request for access’).
‘Access rights’ means rights to use results or background under the terms and conditions laid
down in this Agreement.
Waivers of access rights are not valid unless in writing.
Unless agreed otherwise, access rights do not include the right to sub‐license.
31.2
Access rights for other KIC Partners, for implementing their own tasks under the specific
action
The KIC Partners participating in the same KIC added value activity under the specific action
must give each other access — on a royalty‐free basis — to background needed to implement
their own tasks under the particular KIC added value activity, unless the KIC Partner that holds
the background has — no later than before the commencement of the particular KIC added
value activity —:
(a) informed the other KIC Partners participating in the same KIC added value activity that
access to its background is subject to legal restrictions or limits, including those
imposed by the rights of third parties (including personnel), or
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(b) agreed with the other KIC Partners participating in the same KIC added value activity
that access would not be on a royalty‐free basis.
31.3
Access rights for other KIC Partners, for exploiting their own results of the specific action
The KIC Partners participating in the same KIC added value activity must give each other access
— under fair and reasonable conditions— to background needed for exploiting their own
results of the same KIC added value activity, unless the KIC Partner that holds the background
has — no later than before the commencement of the particular KIC added value activity —
informed the other KIC Partners participating in the same KIC added value activity that access
to its background is subject to legal restrictions or limits, including those imposed by the rights
of third parties (including personnel).
‘Fair and reasonable conditions’ means appropriate conditions, including possible financial
terms or royalty‐free conditions, taking into account the specific circumstances of the request
for access, for example the actual or potential value of the results or background to which
access is requested and/or the scope, duration or other characteristics of the exploitation
envisaged.
Request for access may be made — unless agreed otherwise — up to one year after the period
set out in Article 3 SGA.
31.4
Access rights for other KIC Partners, for other KIC added value activities under the specific
action
The Specific Agreement may provide for access rights to background for other KIC Partners for
other KIC added value activities under the specific action (under the framework partnership)
(see Article 18 SGA).
31.5
Access rights for affiliated entities
Unless otherwise agreed in the Internal Agreement, access to background must also be given
— under fair and reasonable conditions (see above Article 31.3) and unless it is subject to legal
restrictions or limits, including those imposed by the rights of third parties (including
personnel) — to affiliated entities7 established in an EU Member State or ‘associated country’8,
if this is needed to exploit the results generated by the KIC Partners to which they are affiliated.
Unless agreed otherwise (see above, Article 31.1), the affiliated entity concerned must make
the request directly to the KIC Partner that holds the background.
Requests for access may be made — unless agreed otherwise — up to one year after the period
set out in Article 3 SGA.
31.6
Access rights for third parties
7 As defined in the Article 2.1(2) of the Horizon 2020 Rules for Participation, Regulation (EU) No 1290/2013.
8 As defined in the Article 2.1(3) of the Horizon 2020 Rules for Participation, Regulation (EU) No 1290/2013.
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The Specific Agreement may provide for access rights for third parties to background (see
Article 18 SGA).
31.7
Consequences of non‐compliance
If a KIC Partner breaches any of its obligations under this Article, the specific grant may be
reduced (see Article 49).
Such breaches may also lead to any of the other measures described in Section 5.
SUBSUBSECTION 3 RIGHTS AND OBLIGATIONS RELATED TO RESULTS
ARTICLE 32 — OWNERSHIP OF RESULTS
32.1
Ownership by the KIC Partner that generates the results
Results of the specific action are owned by the KIC Partner that generates them.
‘Results’ means any (tangible or intangible) output of the specific action such as data,
knowledge or information — whatever its form or nature, whether it can be protected or not
— that is generated in the specific action, as well as any rights attached to it, including
intellectual property rights.
32.2
Joint ownership by the several KIC Partners
Two or more KIC Partners own results jointly if:
(a) they have jointly generated them and
(b) it is not possible to:
(i) establish the respective contribution of each KIC Partner, or
(ii) separate them for the purpose of applying for, obtaining or maintaining their
protection (see Article 33).
The joint owners must agree (in writing) on the allocation and terms of exercise of their joint
ownership (‘joint ownership agreement’), to ensure compliance with their obligations under
the Framework Partnership Agreement and the Specific Agreement.
Unless otherwise agreed in the joint ownership agreement, each joint owner may grant non‐
exclusive licences to third parties to exploit jointly‐owned results (without any right to sub‐
license), if the other joint owners are given:
(a) at least 45 days advance notice and
(b) fair and reasonable compensation.
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Once the results have been generated, joint owners may agree (in writing) to apply another
regime than joint ownership (such as, for instance, transfer to a single owner (see Article 36)
with access rights for the others).
32.3
Rights of third parties (including personnel)
If third parties (including personnel) may claim rights to the results, the KIC Partner concerned
must ensure that it complies with its obligations under the Framework Partnership Agreement
and the Specific Agreement.
If a third party generates results, the KIC Partner concerned must obtain all necessary rights
(transfer, licences or other) from the third party, in order to be able to respect its obligations
as if those results were generated by the KIC Partner itself.
If obtaining the rights is impossible, the KIC Partner must refrain from using the third party to
generate the results.
32.4
EIT ownership, to protect results
32.4.1 The EIT may — with the consent of the KIC Partner concerned — assume ownership of
the results of a specific action to protect them, if a KIC Partner intends — up to four years after
the period set out in Article 3 of the Specific Agreement — to disseminate its results without
protecting them, except in any of the following cases:
(a) the lack of protection is because protecting the results is not possible, reasonable or
justified (given the circumstances);
(b) the lack of protection is because there is a lack of potential for commercial or
industrial exploitation, or
(c) the KIC Partner intends to transfer the results to another KIC Partner or third party
established in an EU Member State or associated country, which will protect them.
Before the results are disseminated and unless any of the cases above under Points (a), (b) or
(c) applies, the KIC Partner must formally notify the EIT and at the same time inform it of any
reasons by the KIC Partner for refusing consent. The KIC Partner may refuse consent only if it
can show that its legitimate interests would suffer significant harm.
If the EIT decides to assume ownership, it will formally notify the KIC Partner within 45 days of
receiving notification.
No dissemination relating to these results may take place before the end of this period or, if
the EIT takes a positive decision, until it has taken the necessary steps to protect the results.
32.4.2 The EIT may — with the consent of the KIC Partner concerned — assume ownership of
the results of a specific action to protect them, if a KIC Partner intends — up to four years after
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the period set out in Article 3 SGA — to stop protecting them or not to seek an extension of
protection, except in any of the following cases:
(a) the protection is stopped because of a lack of potential for commercial or industrial
exploitation;
(b) an extension would not be justified given the circumstances.
A KIC Partner that intends to stop protecting results or not seek an extension must — unless
any of the cases above under Points (a) or (b) applies — formally notify the EIT at least 60 days
before the protection lapses or its extension is no longer possible and at the same time inform
it of any reasons for refusing consent. The KIC Partner may refuse consent only if it can show
that its legitimate interests would suffer significant harm.
If the EIT decides to assume ownership, it will formally notify the KIC Partner concerned within
45 days of receiving notification.
32.5
Consequences of non‐compliance
If a KIC Partner breaches any of its obligations under this Article, the specific grant may be
reduced (see Article 49).
Such breaches may also lead to the any of the other measures described in Section 5.
ARTICLE 33 — PROTECTION OF RESULTS — VISIBILITY OF EU FUNDING
33.1
Obligation to protect the results
Each KIC Partner must examine the possibility of protecting its results of the specific action and
must adequately protect them — for an appropriate period and with appropriate territorial
coverage — if:
(a) the results can reasonably be expected to be commercially or industrially exploited
and
(b) protecting them is possible, reasonable and justified (given the circumstances).
When deciding on protection, the KIC Partner must consider its own legitimate interests and
the legitimate interests (especially commercial) of the other KIC Partners.
33.2
EIT ownership, to protect the results
If a KIC Partner intends not to protect its results, to stop protecting them or not seek an
extension of protection, the EIT may — under certain conditions (see Article 32.4) — assume
ownership to ensure their (continued) protection.
33.3
Information on EIT and EU funding
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Applications for protection of results (including patent applications) filed by or on behalf of a
KIC Partner must — unless the EIT requests or agrees otherwise or unless it is impossible —
include the following:
“The activity leading to this application has received funding from the European
Institute of Innovation and Technology (EIT) under grant agreement No [number]. This
European body receives support from the European Union's the Horizon 2020 research
and innovation programme”.
33.4
Consequences of non‐compliance
If a KIC Partner breaches any of its obligations under this Article, the specific grant may be
reduced (see Article 49).
Such a breach may also lead to any of the other measures described in Section 5.
ARTICLE 34 — EXPLOITATION OF RESULTS
34.1
Obligation to exploit the results
Each KIC Partner must — up to four years after the period set out in Article 3 SGA — take
measures aiming to ensure ‘exploitation’ of its results of the specific action (either directly or
indirectly, in particular through transfer or licensing; see Article 36) by:
(a)
using them in further research activities (outside the specific action);
(b)
developing, creating or marketing a product or process;
(c)
creating and providing a service;
(d)
using them in standardisation activities, or
(e)
using them in further knowledge triangle activities.
The Specific Agreement may provide for additional exploitation obligations (see Article 18
SGA).
This does not change the security obligations in Article 43, which still apply.
34.2
Results that could contribute to European or international standards — Information on
EIT and EU Funding
The Specific Agreement may provide for additional exploitation provisions (see Article 18 SGA).
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If results are incorporated in a standard, the KIC Partner concerned must — unless the EIT
requests or agrees otherwise or unless it is impossible — ask the standardisation body to
include the following statement in (information related to) the standard:
“Results incorporated in this standard received funding from the European Institute of
Innovation and Technology (EIT) under grant agreement No [Number]. This European
body receives support from the European Union's Horizon 2020 research and
innovation programme”.
34.3
Consequences of non‐compliance
If a KIC Partner breaches any of its obligations under this Article, the specific grant may be
reduced in accordance with Article 49.
Such a breach may also lead to any of the other measures described in Section 5.
ARTICLE 35 — DISSEMINATION OF RESULTS — OPEN ACCESS — VISIBILITY OF EIT AND EU
FUNDING
35.1
Obligation to disseminate results
Unless it goes against their legitimate interests, each KIC Partner must — as soon as possible
— ‘disseminate’ its results of the specific action by disclosing them to the public by appropriate
means (other than those resulting from protecting or exploiting the results), including in
scientific publications (in any medium).
The Specific Agreement may provide for additional dissemination obligations (see Article 18
SGA).
This does not change the obligation to protect results in Article 33, the confidentiality
obligations in Article 42, the security obligations in Article 43 or the obligations to protect
personal data in Article 45, all of which still apply.
A KIC Partner that intends to disseminate its results must give advance notice to the other KIC
Partners of — unless agreed otherwise — at least 45 days, together with sufficient information
on the results it will disseminate.
Any other KIC Partner may object within — unless agreed otherwise — 30 days of receiving
notification, if it can show that its legitimate interests in relation to the results or background
would be significantly harmed. In such cases, the dissemination may not take place unless
appropriate steps are taken to safeguard these legitimate interests.
If a KIC Partner intends not to protect its results, it may — under certain conditions (see Article
32.4.1) — need to formally notify the EIT before dissemination takes place.
35.2
Open access to scientific publications
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Each KIC Partner must ensure open access (free of charge, online access for any user) to all
peer‐reviewed scientific publications relating to its results.
In particular, it must:
(a) as soon as possible and at the latest on publication, deposit a machine‐readable
electronic copy of the published version or final peer‐reviewed manuscript accepted
for publication in a repository for scientific publications;
Moreover, the KIC Partner must aim to deposit at the same time the research data
needed to validate the results presented in the deposited scientific publications.
(b) ensure open access to the deposited publication — via the repository — at the latest:
(i) on publication, if an electronic version is available for free via the publisher, or
(ii) within six months of publication (twelve months for publications in the social
sciences and humanities) in any other case.
(c) ensure open access — via the repository — to the bibliographic metadata that identify
the deposited publication.
The bibliographic metadata must be in a standard format and must include all of the
following:
‐
the terms "EIT", "European Union (EU)" and "Horizon 2020";
‐
the name of the specific action, acronym and grant number;
‐
the publication date, and length of embargo period if applicable, and
‐
a persistent identifier.
35.3
Open access to research data
The Specific Agreement may provide for additional dissemination obligations concerning open
access to research data (see Article 18 SGA).
35.4
Information on EIT and EU funding — Obligation and right to use the EIT KIC logo and EU
emblem
Unless the EIT requests or agrees otherwise or unless it is impossible, any dissemination of
results (in any form, including electronic) must:
(a) display the EIT KIC logo as adopted by the EIT (hereafter referred to as “EIT KIC logo”);
(b) display the EU emblem and
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(c) include the following text:
“This activity has received funding from the European Institute of Innovation and
Technology (EIT) under grant agreement No [Number]. This European body
receives support from the Horizon 2020 research and innovation programme”.
When displayed together with another logo, the EIT KIC logo and EU emblem must have
appropriate prominence.
For the purposes of their obligations under this Article, the KIC Partners may use the EIT KIC
logo and the EU emblem without first obtaining approval from the EIT or the Commission.
This does not however give them the right to exclusive use.
Moreover, they may not appropriate the EIT KIC logo and the EU emblem (or any similar
trademark or logo), either by registration or by any other means.
35.5
Disclaimer excluding EIT responsibility
Any dissemination of results must indicate that it reflects only the author's view and that the
EIT is not responsible for any use that may be made of the information it contains.
35.6
Consequences of non‐compliance
If a KIC Partner breaches any of its obligations under this Article, the specific grant may be
reduced (see Article 49).
Such a breach may also lead to any of the other measures described in Section 5.
ARTICLE 36 — TRANSFER AND LICENSING OF RESULTS
36.1
Transfer of ownership
Each KIC Partner may transfer ownership of its results of the specific action.
It must however ensure that its obligations under Articles 32.2, 32.4, 33, 34, 35, 36 and 37 also
apply to the new owner and that this owner has the obligation to pass them on in any
subsequent transfer.
This does not change the security obligations in Article 43, which still apply.
Unless agreed otherwise (in writing) for specifically‐identified third parties or unless impossible
under applicable laws on mergers and acquisitions, a KIC Partner that intends to transfer
ownership of results must give at least 45 days advance notice (or less if agreed in writing) to
the other KIC Partners that still have (or still may request) access rights to the results. This
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notification must include sufficient information on the new owner to enable any KIC Partner
concerned to assess the effects on its access rights.
Unless agreed otherwise (in writing) for specifically‐identified third parties, any other KIC
Partner may object within 30 days of receiving notification (or less if agreed in writing), if it can
show that the transfer would adversely affect its access rights. In this case, the transfer may
not take place until agreement has been reached between the KIC Partners concerned.
36.2
Granting licenses
Each KIC Partner may grant licences to its results of the specific action (or otherwise give the
right to exploit them), if:
(a) this does not impede access rights (see Article 37) and
(b) the KIC Partner complies with its additional exploitation obligations (if any) (see Article
34.1).
In addition to Points (a) and (b), exclusive licences for results may be granted only if all the
other KIC Partners concerned have waived their access rights (see Article 37.1).
This does not change the dissemination obligations in Article 35 or security obligations in
Article 43, which still apply.
36.3
EIT right to object to transfers or licensing
The Specific Agreement may provide for the right of the EIT to object to a transfer of ownership
or the licencing of results (see Article 18 SGA).
36.4
Consequences of non‐compliance
If a KIC Partner breaches any of its obligations under this Article, the specific grant may be
reduced (see Article 49).
Such a breach may also lead to any of the other measures described in Section 5.
ARTICLE 37 — ACCESS RIGHTS TO RESULTS
37.1
Exercise of access rights — Waiving of access rights — No sub‐licensing
The conditions set out in Article 31.1 apply.
The obligations set out in this Article do not change the security obligations in Article 43, which
still apply.
37.2
Access rights for the other KIC Partners, for implementing their own tasks under the
specific action
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The KIC Partners participating in the same KIC added value activity must give each other access
— on a royalty‐free basis — to results needed for implementing their own tasks in the same
KIC added value activity under the specific action.
37.3
Access rights for the other KIC Partners, for exploiting their own results
For each specific action, the KIC Partners participating in the same KIC added value activity
must give each other — under fair and reasonable conditions (see Article 31.3) — access to
results needed for exploiting their own results from the same KIC added value activity.
Requests for access may be made — unless agreed otherwise — up to one year after the period
set out in Article 3 SGA.
37.4
Access rights for the other KIC Partners, for other KIC added value activities under the
specific action
The Specific Agreement may provide for access rights to results for the other KIC Partners for
other KIC added value activities under the specific action (under the framework partnership)
(see Article 18 SGA).
37.5
Access rights of affiliated entities
Unless agreed otherwise in the Internal Agreement, access to results must also be given —
under fair and reasonable conditions (see Article 31.3) — to affiliated entities established in an
EU Member State or associated country, if this is needed for those entities to exploit the results
generated by the KIC Partners to which they are affiliated.
Unless agreed otherwise (see Article 37.1), the affiliated entity concerned must make any such
request directly to the KIC Partner that owns the results.
Requests for access may be made — unless agreed otherwise — up to one year after the period
set out in Article 3 SGA.
37.6
Access rights for the EU institutions and bodies and EU Member States
The Specific Agreement may provide for access rights for EU institutions and bodies and EU
Member States to results (see Article 18 SGA).
37.7
Access rights for third parties
The Specific Agreement may provide for access rights for third parties to results (see Article 18
SGA).
37.8 Consequences of non‐compliance
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If a KIC Partner breaches any of its obligations under this Article, the specific grant may be
reduced (see Article 49).
Such breaches may also lead to any of the other measures described in Section 5.
SUBSECTION 4 OTHER RIGHTS AND OBLIGATIONS
ARTICLE 38 — RECRUITMENT AND WORKING CONDITIONS FOR RESEARCHERS
38.1
Obligation to take measures to implement the European Charter for Researchers and
Code of Conduct for the Recruitment of Researchers
The KIC Partners must take all measures to implement the principles set out in the Commission
Recommendation on the European Charter for Researchers and the Code of Conduct for the
Recruitment of Researchers9, in particular regarding:
‐
working conditions;
‐
transparent recruitment processes based on merit, and
‐
career development.
The KIC Partners must ensure that researchers and third parties involved in the specific action
are aware of them.
38.2
Consequences of non‐compliance
If a KIC Partner breaches its obligations under this Article, the EIT may apply any of the
measures described in Section 5.
ARTICLE 39 — GENDER EQUALITY
39.1
Obligation to aim for gender equality
The KIC Partners must take all measures to promote equal opportunities between men and
women in the implementation of the specific actions. They must aim, to the extent possible,
for a gender balance at all levels of personnel assigned to the specific actions, including at
supervisory and managerial level.
39.2
Consequences of non‐compliance
If a KIC Partner breaches its obligations under this Article, the EIT may apply any of the
measures described in Section 5.
9 Commission Recommendation 2005/251/EC of 11 March 2005 on the European Charter for Researchers and on
a Code of Conduct for the Recruitment of Researchers (OJ L 75, 22.3.2005, p. 67).
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ARTICLE 40 — ETHICS AND RESEARCH INTEGRITY
40.1
Obligation to comply with ethical and research integrity principles
The KIC Partners must carry out the specific actions in compliance with:
(a) ethical principles (including the highest standards of research integrity) and
(b) applicable international, EU and national law.
Funding will not be granted for activities carried out outside the EU if they are prohibited in all
Member States or for activities which destroy human embryos (for example, for obtaining stem
cells).
The KIC Partners must ensure that the activities under the specific actions have an exclusive
focus on civil applications.
The KIC Partners must ensure that the activities under the specific actions do not:
(a) aim at human cloning for reproductive purposes;
(b) intend to modify the genetic heritage of human beings which could make such
changes heritable (with the exception of research relating to cancer treatment of the
gonads, which may be financed), or
(c) intend to create human embryos solely for the purpose of research or for the purpose
of stem cell procurement, including by means of somatic cell nuclear transfer.
The partners must respect the highest standards of research integrity — as set out, for
instance, in the European Code of Conduct for Research Integrity10.
This implies notably compliance with the following essential principles:
- honesty;
- reliability;
- objectivity;
- impartiality;
- open communication;
- duty of care;
10 The European Code of Conduct for Research Integrity of ALLEA (All European Academies) and ESF (European
Science Foundation) of March 2011.
http://ec.europa.eu/research/participants/data/ref/h2020/other/hi/h2020‐ethics_code‐of‐conduct_en.pdf.
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- fairness and
- responsibility for future science generations.
This means that the partners must ensure that persons carrying out research tasks:
- present their research goals and intentions in an honest and transparent manner;
- design their research carefully and conduct it in a reliable fashion, taking its impact on
society into account;
- use techniques and methodologies (including for data collection and management) that
are appropriate for the field(s) concerned;
- exercise due care for the subjects of research — be they human beings, animals, the
environment or cultural objects;
- ensure objectivity, accuracy and impartiality when disseminating the results;
- allow — in addition to the open access obligations under Article 35.3 (if any) as much
as possible and taking into account the legitimate interest of the partners — access to
research data, in order to enable research to be reproduced;
- make the necessary references to their work and that of other researchers;
- refrain from practicing any form of plagiarism, data falsification or fabrication;
- avoid double funding, conflicts of interest and misrepresentation of credentials or
other research misconduct.
40.2
Activities raising ethical issues
Activities raising ethical issues must comply with the ‘ethics requirements’ set out in Annex 1
to the Specific Agreements (if applicable).
Before the beginning of an activity raising an ethical issue, each KIC Partner must have
obtained:
(a) any ethics committee opinion required under national law, and
(c) any notification or authorisation for activities raising ethical issues required under
national and/or European law
needed for implementing the action tasks in question.
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The documents must be kept on file and be submitted upon request by the KIC LE to the EIT
(see Article 52). If they are not in English, they must be submitted together with an English
summary which shows that the action tasks in question are covered and includes the
conclusions of the committee or authority concerned (if available).
40.3
Activities involving human embryos or human embryonic stem cells
Activities involving research on human embryos or human embryonic stem cells may be carried
out, in addition to Article 40.1, only if:
‐
they are set out in Annex 1 to the Specific Agreements or
‐
if the KIC LE has obtained explicit approval (in writing) from the EIT (see Article 58).
40.4
Consequences of non‐compliance
If a KIC Partner breaches any of its obligations under this Article, the specific grant may be
reduced (see Article 49) and the Specific Agreement concerned or participation of the KIC
Partner may be terminated (see Article 56).
Such breaches may also lead to any of the other measures described in Section 5.
ARTICLE 41 — CONFLICT OF INTERESTS
41.1
Obligation to avoid a conflict of interests
The KIC Partners must take all measures to prevent any situation where the impartial and
objective implementation of the specific actions is compromised for reasons involving
economic interest, political or national affinity, family or emotional ties or any other shared
interest (‘conflict of interests’).
They must formally notify to the EIT without delay any situation constituting or likely to lead to
a conflict of interests and immediately take all the necessary steps to rectify this situation.
The EIT may verify that the measures taken are appropriate and may require additional
measures to be taken by a specified deadline.
41.2
Consequences of non‐compliance
If a KIC Partner breaches any of its obligations under this Article, the grant may be reduced
(see Article 49) and the Specific Agreement or participation of the KIC Partner may be
terminated (see Article 56).
Such breaches may also lead to any of the other measures described in Section 5.
ARTICLE 42 — CONFIDENTIALITY
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42.1
General obligation to maintain confidentiality
During implementation of the specific action and for four years after the period set out in
Article 3 SGA, the parties must keep confidential any data, documents or other material (in any
form) that is identified as confidential at the time it is disclosed (‘confidential information’).
If a KIC Partner requests, the EIT may agree to keep such information confidential for an
additional period beyond the initial four years.
If information has been identified as confidential only orally, it will be considered to be
confidential only if this is confirmed in writing within 15 days of the oral disclosure.
Unless otherwise agreed between the parties, they may use confidential information only to
implement the Framework Partnership Agreement or Specific Agreement.
The KIC Partners may disclose confidential information to their personnel or third parties
involved in the specific action only if they:
(a) need to know to implement the Framework Partnership Agreement or Specific
Agreements and
(b) are bound by an obligation of confidentiality.
This does not change the security obligations in Article 43, which still apply.
The EIT may disclose confidential information to its staff, other EU institutions and bodies. It
may disclose confidential information to third parties, if:
(a) this is necessary to implement the Framework Partnership Agreement or Specific
Agreement or safeguard the EIT’s financial interests and
(b) the recipients of the information are bound by an obligation of confidentiality.
The confidentiality obligations no longer apply if:
(a) the disclosing party agrees to release the other party;
(b) the information was already known by the recipient or is given to him without
obligation of confidentiality by a third party that was not bound by any obligation of
confidentiality;
(c) the recipient proves that the information was developed without the use of
confidential information;
(d) the information becomes generally and publicly available, without breaching any
confidentiality obligation, or
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(e) the disclosure of the information is required by EU or national law.
42.2
Consequences of non‐compliance
If a KIC Partner breaches any of its obligations under this Article, the specific grant may be
reduced (see Article 49).
Such breaches may also lead to any of the other measures described in Section 5.
ARTICLE 43 — SECURITY‐RELATED OBLIGATIONS
43.1
Results with a security recommendation
For security recommendations restricting disclosure or dissemination, the KIC Partners must ‐
before disclosure or dissemination to a third party (including linked third parties, such as
affiliated entities) ‐ inform the KIC LE which must request written approval from the EIT.
In case of change to the security context, the KIC Partners must inform the KIC LE which must
immediately inform the EIT and, if necessary, request for Annex 1 SGA to be amended (see
Article 61)
.
43.2
Classified information
The KIC Partners must comply with the security classification set out in Annex 1 SGA (‘security
aspect letter (SAL)’ and ‘security classification guide (SCG)’).
Information that is classified must be treated in accordance with the security aspect letter (SAL)
and Decision No 2015/44411 — until it is declassified.
Action tasks involving classified information may not be subcontracted without prior explicit
written approval from the EIT.
In case of change to the security context, the KIC Partners must inform the KIC LE which must
immediately inform the EIT
and, if necessary, request for Annex 1 SGA to be amended (see
Article 61).
43.3
Activities involving dual‐use goods or dangerous materials and substances
Activities involving dual‐use goods or dangerous materials and substances must comply with
applicable EU, national and international law.
Before the beginning of the activity, the KIC LE must submit to the EIT (see Article 58) a copy
of any export or transfer licences required under EU, national or international law.
43.4
Consequences of non‐compliance
11 Commission Decision 2015/444/EC, Euratom of 13 March 2015 on the security rules for protecting EU classified
information.
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If a KIC Partner breaches any of its obligations under this Article, the specific grant may be
reduced (see Article 49).
Such breaches may also lead to any of the other measures described in Section 5.
ARTICLE 44 — PROMOTING THE KIC — VISIBILITY OF THE EIT AND EU FUNDING
44.1
Communication activities by the KIC Partners
44.1.1 Obligation to promote the specific action and its results
The KIC Partners must promote the specific action and its results by providing targeted
information to multiple audiences (including the media and the public) in a strategic and
effective manner.
This does not change the specific dissemination obligations in Article 35, the confidentiality
obligations in Article 42 or the security obligations in Article 43, all of which still apply.
Before engaging in a communication activity expected to have a major media impact, the KIC
Partners must inform the EIT (see Article 58).
44.1.2 Information on EIT and EU funding — Obligation and right to use the EIT KIC logo and the
EU emblem
Unless the EIT requests or agrees otherwise or unless it is impossible, any communication
activity related to the specific action (including in electronic form, via social media, etc.) as well
as any infrastructure, equipment and major results funded by the specific grants must:
(a)
display the EIT KIC logo as adopted by the EIT;
(b)
display the EU emblem;
(c)
follow the brand guidelines outlined in the EIT Community Brand Book as adopted
by the EIT; and
(d)
include the following text:
For communication activities: ‘This activity has received funding from the
European Institute of Innovation and Technology (EIT). This body of the
European Union receives support from the European Union's Horizon 2020
research and innovation programme.‘
For infrastructure, equipment and major results: ‘This
[infrastructure]
[equipment] [insert type of result] is part of an activity that has received funding
from the European Institute of Innovation and Technology (EIT). This body of
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the European Union receives support from the European Union's Horizon 2020
research and innovation programme.‘.
When displayed together with another logo, the EIT KIC logo and the EU emblem must have
appropriate prominence.
For the purposes of their obligations under this Article, the KIC Partners may use the EIT KIC
logo and the EU emblem without prior approval from the EIT.
This does not, however, give them the right to exclusive use.
Moreover, they may not appropriate the EIT KIC logo or the EU emblem (or any similar
trademark or logo), either by registration or by any other means.
44.1.3 Disclaimer excluding EIT responsibility
Any communication activity related to the specific action must indicate that it reflects only the
author's view and that the EIT is not responsible for any use that may be made of the
information it contains.
44.2
Communication activities by the EIT and the Commission
44.2.1 Right to use KIC’s materials, documents or information
The EIT and the Commission may use, for its communication and dissemination activities,
information relating to the specific action, documents notably summaries for publication and
public deliverables as well as any other material, such as pictures or audio‐visual material that
it receives from any KIC Partner (including in electronic form).
This does not change the confidentiality obligations in Article 42 and the security obligations
in Article 43, all of which still apply.
If the EIT’s or the Commission’s use of these materials, documents or information would risk
compromising legitimate interests, the KIC Partner concerned may request the EIT or the
Commission not to use it (see Article 58).
The right to use a KIC Partner's materials, documents and information includes:
(a) use for its own purposes (in particular, making them available to persons working for
the EIT, the Commission or any other EU institution, agency or body, or institutions in
EU Member States; and copying or reproducing them in whole or in part, in unlimited
numbers);
(b) distribution to the public (in particular, publication as hard copies and in electronic or
digital format, publication on the internet, as a downloadable or non‐downloadable
file, broadcasting by any channel, public display or presentation, communicating
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through press information services, or inclusion in widely accessible databases or
indexes);
(c) editing or redrafting for communication and publicising activities (including
shortening, summarising, inserting other elements (such as meta‐data, legends, other
graphic, visual, audio or text elements), extracting parts (e.g. audio or video files),
dividing into parts, use in a compilation);
(d) translation;
(e) giving access in response to individual requests under Regulation No 1049/2001 ,
without the right to reproduce or exploit;
(f) storage in paper, electronic or other form;
(g) archiving, in line with applicable document‐management rules, and
(h) the right to authorise third parties to act on its behalf or sub‐license the modes of use
set out in Points (b),(c),(d) and (f) to third parties, if needed for the communication
and publicising activities of the EIT or the Commission.
If the right of use is subject to rights of a third party (including personnel of the KIC Partner),
the KIC Partner must ensure that it complies with its obligations under the Framework
Partnership Agreement and the Specific Agreement (in particular, by obtaining the necessary
approval from the third parties concerned).
Where applicable (and if provided by the KIC Partners), the EIT or the Commission will insert
the following information:
"© ‐ [year] ‐ [name of the copyright owner]. All rights reserved. Licensed to the
European Institute of Innovation and Technology (EIT) and the European Union (EU)
under conditions."
44.3
Consequences of non‐compliance
If a KIC Partner breaches any of its obligations under this Article, the specific grant may be
reduced (see Article 49).
Such breaches may also lead to any of the other measures described in Section 5.
ARTICLE 45 — PROCESSING OF PERSONAL DATA
45.1
Processing of personal data by the EIT and the Commission
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Any personal data under the Framework Partnership Agreement and the Specific Agreements
will be processed by the EIT or the Commission under Regulation No 45/200112 and according
to the 'notifications of the processing operations' to the Data Protection Officer (DPO) of the
EIT or of the Commission (publicly accessible in the DPO register).
Such data will be processed by the 'data controller' of the EIT or of the Commission for the
purposes of implementing, managing and monitoring of those agreements or protecting the
financial interests of the EIT, the EU or Euratom (including checks, reviews, audits and
investigations; see Article 28).
The persons whose personal data are processed have the right to access and correct their own
personal data. For this purpose, they must send any queries about the processing of their
personal data to the data controller, via the contact point indicated in the privacy statement(s)
that are published on the EIT’s and the Commission's website.
They also have the right to have recourse at any time to the European Data Protection
Supervisor (EDPS).
45.2
Processing of personal data by the KIC Partners
The KIC Partners must process personal data under the Framework Partnership Agreement
and Specific Agreements in compliance with the applicable EU and national law on data
protection (including authorisations or notification requirements).
The KIC Partners may grant their personnel access only to data that is strictly necessary for
implementing, managing and monitoring of those agreements.
The KIC Partners must inform the personnel whose personal data are collected and processed
by the EIT or the Commission. For this purpose, they must provide them with the privacy
statement(s (see above), before transmitting their data to the EIT or the Commission.
45.3 Consequences of non‐compliance
If a KIC Partner breaches any of its obligations under Article 45.2, the EIT may apply any of the
measures described in Section 5.
ARTICLE 46 — ASSIGNMENTS OF CLAIMS FOR PAYMENT AGAINST THE EIT
The KIC Partners may not assign any of their claims for payment against the EIT to any third
party, except if approved by the EIT on the basis of a reasoned, written request by the KIC LE
(on behalf of the KIC Partner concerned).
If the EIT has not accepted the assignment or the terms of it are not observed, the assignment
will have no effect on it.
12 Regulation (EC) No 45/2001 of the European Parliament and of the Council of 18 December 2000 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 (OJ L 8, 12.01.2001, p. 1).
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In no circumstances will an assignment release the KIC Partners from their obligations towards
the EIT.
SECTION 4 DIVISION OF KIC PARTNERS' ROLES AND RESPONSIBILITIES
ARTICLE 47 — DIVISION OF KIC PARTNERS’ ROLES AND RESPONSIBILITIES
47.1
Roles and responsibilities towards the EIT
The KIC Partners have full responsibility for implementing the action (“action” in the context
of this article means the particular KIC added value activity in which the KIC Partner
participates) as described in Annex 1 to the Specific Agreement and complying with the
Framework Partnership Agreement and the Specific Agreement.
The KIC Partners are jointly and severally liable for the technical implementation of the action
as described in Annex 1 to the Specific Agreement. If a KIC Partner fails to implement its part
of the action, the other KIC Partners become responsible for implementing this part (without
being entitled to any additional EIT funding for doing so), unless the EIT expressly relieves them
of this obligation.
The financial responsibility of each KIC Partner is governed by Article 50.
47.2
Internal division of roles and responsibilities
The internal roles and responsibilities of the KIC Partners are divided as follows:
(a) Each KIC Partner must:
(i) not applicable;
(ii) inform the KIC LE immediately of any events and circumstances likely to affect
significantly or delay the implementation of a specific action (see Article 23);
(iii) submit to the KIC LE in good time:
‐
individual financial statements for itself and its linked third parties and, if
required, certificates on the financial statements (see Article 16 SGA);
‐
the data needed to draw up the technical report (see Article 16 SGA);
‐
ethics committee opinions and notifications or authorisations for activities
raising ethical issues (see Article 40);
‐
any other documents or information required by the EIT under the
Framework Partnership Agreement or the Specific Agreement, unless those
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agreements require the KIC Partner to submit this information directly to the
EIT.
(b) The KIC LE must:
(i) monitor that the specific action is implemented properly (see Article 12);
(ii) act as the intermediary for all communications between the KIC Partners and the
EIT (in particular, providing the EIT with the information described in Article 23),
unless the Framework Partnership Agreement or the Specific Agreement specify
otherwise;
(iii) request and review any documents or information required by the EIT and verify
their completeness and correctness and consolidate them before passing it on to
the EIT;
(iv) submit the deliverables and reports to the EIT (see Articles 15 and 16 SGA);
(v) ensure that all payments are made to the other KIC Partners without unjustified
delay (see Article 17 SGA);
(vi) inform the EIT of the amounts paid to each KIC Partner, when required under the
Framework Partnership Agreement (see Articles 50 and 56) or requested by the
EIT.
The KIC LE may not delegate or subcontract the above‐mentioned tasks to any other KIC
Partner or third party (including linked third parties).
47.3
Internal arrangements
The KIC Partners must have internal arrangements regarding their operation and co‐ordination
to ensure that the specific actions are implemented properly (see Article 4).
47.4 Relationship with complementary beneficiaries — Collaboration agreement
Not applicable
47.5 Relationship with participants of a joint action — Coordination agreement
Not applicable
SECTION 5
REJECTION OF COSTS — REDUCTION OF THE GRANT — RECOVERY — SANCTIONS
— DAMAGES — SUSPENSION — TERMINATION — FORCE MAJEURE
SUBSECTION 1 REJECTION OF COSTS — REDUCTION OF THE GRANT — RECOVERY — SANCTIONS
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ARTICLE 48 — REJECTION OF INELIGIBLE COSTS
48.1
Conditions
The EIT will — after termination of the participation of a KIC partner, at the time of the payment
of the balance or afterwards — reject any costs for a specific action which are ineligible (see
Article 5 SGA), in particular, following checks, reviews, audits or investigations (see Article 28).
The rejection may also be based on the extension of findings from other grants to a specific
grant (see Article 28.5.2).
48.2
Ineligible costs to be rejected — Calculation — Procedure
Ineligible costs will be rejected in full, except for lump sum costs, which will be rejected
proportionally to the tasks or parts of the specific action not implemented.
If the rejection of costs does not lead to a recovery (see Article 50), the EIT will formally notify
the KIC LE or the KIC Partner concerned of the rejection of costs, the amounts and the reasons
why (if applicable, together with the notification of amounts due; see Article 27). The KIC LE or
the KIC Partner concerned may — within 30 days of receiving notification — formally notify
the EIT of its disagreement and the reasons why.
If the rejection of costs leads to a recovery, the EIT will follow the contradictory procedure with
'pre‐information letter' set out in Article 50.
48.3
Effects
If the EIT rejects costs at the time of the payment of the balance, it will deduct them from the
total eligible costs declared, for the specific action, in the financial statement (see Article 16
SGA). It will then calculate the payment of the balance (see Article 17 SGA).
If the EIT rejects costs after termination of the participation of a partner, it will deduct them
from the costs declared by the partner and its linked third parties in the termination report
and include the rejection in the calculation after termination (see Article 56.2 and 56.3).
If the EIT rejects costs after the payment of the balance, it will deduct the amount rejected from
the total eligible costs declared, by the KIC Partner, in the financial statement. It will then
calculate the revised final grant amount as set out in Article 10.4.
ARTICLE 49 — REDUCTION OF THE GRANT
49.1
Conditions
49.1.1 The EIT may – after termination of the participation of a KIC Partner, at the payment of
the balance or afterwards – reduce a specific grant , if:
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(a) a partner (or a natural person who has the power to represent or take decisions on its
behalf) has committed :
(i)
substantial errors, irregularities or fraud or
(ii)
serious breach of obligations under the Framework Partnership Agreement or
a Specific Agreement or during the award procedure (including improper
implementation of the specific action, submission of false information, failure
to provide required information, breach of ethical principles) or
(b) a partner (or a natural person who has the power to represent or take decision on its
behalf) has committed – in other EU or Euratom grants awarded to it under similar
conditions – systemic or recurrent errors, irregularities, fraud or serious breach of
obligations that have a material impact on the specific grant (extension of findings from
other grants to the specific grant; see Article 28.5.2).
49.2
Amount to be reduced — Calculation — Procedure
The amount of the reduction will be proportionate to the seriousness of the errors,
irregularities or fraud or breach of obligations.
Before reduction of the specific grant, the EIT will formally notify a 'pre‐information letter' to
the KIC LE or the KIC Partner concerned:
‐
informing it of its intention to reduce the grant, the amount it intends to reduce and
the reasons why and
‐
inviting it to submit observations within 30 days of receiving notification.
If the EIT does not receive any observations or decides to pursue reduction despite the
observations it has received, it will formally notify confirmation of the reduction (if applicable,
together with the notification of amounts due; see Article 17 SGA).
49.3
Effects
If the EIT reduces the specific grant after termination of the participation of a KIC Partner, it
will calculate the reduced grant amount for that partner and then determine the amount due
to that partner (see Article 56.2 and 56.3).
If the EIT reduces the specific grant at the time of the payment of the balance, it will calculate
the reduced grant amount for the specific action and then determine the amount due as
payment of the balance (see Article 10.3.4 and Article 17 SGA).
If the EIT reduces the specific grant after the payment of the balance, it will calculate the revised
final grant amount for the KIC Partner concerned (see Article 10.4). If the revised final grant
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amount for the KIC Partner concerned is lower than its share of the final grant amount, the EIT
will recover the difference (see Article 50).
ARTICLE 50 — RECOVERY OF UNDUE AMOUNTS
50.1
Amount to be recovered — Calculation — Procedure
The EIT will — after termination of the participation of a KIC Partner, at the payment of the
balance or afterwards — claim back any amount that was paid but is not due for a specific grant
under the Framework Partnership Agreement and the Specific Agreement concerned.
Each KIC Partner's financial responsibility in case of recovery is limited to its own debt including
undue amounts paid by the EIT for costs declared by its linked third parties, except for the
amount retained for the Guarantee Fund (see Article 17 SGA).
50.1.1 Recovery after termination of a KIC Partner’s participation
If recovery takes place after termination of a KIC Partner’s participation (including the KIC LE),
the EIT will claim back the undue amount from the KIC Partner concerned by formally notifying
it a debit note (see Article 56.2 and 56.3). This note will specify the amount to be recovered,
the terms and the date for payment.
If payment is not made by the date specified in the debit note, the EIT will recover the amount
as follows:
(a) by ‘offsetting’ it — without the KIC Partner’s consent — against any amounts owed
to the KIC Partner concerned by the EIT.
In exceptional circumstances, to safeguard the EU’s financial interests, the EIT may
offset before the payment date specified in the debit note;
(b) if a linked third party has accepted joint and several liability (see Article 19), by holding
the third party liable up to the maximum EIT contribution indicated, for the linked third
party, in the estimated budget (see Annex 2 SGA);
(c) taking legal action (see Article 63).
If payment is not made by the date specified in the debit note, the amount to be recovered
(see above) will be increased by late‐payment interest at the rate set out in Article 17 SGA,
from the day following the payment date in the debit note, up to and including the date the
EIT receives full payment of the amount.
Partial payments will be first credited against expenses, charges and late‐payment interest and
then against the principal.
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Bank charges incurred in the recovery process will be borne by the KIC Partner, unless Directive
2007/64/EC13 applies.
50.1.2 Recovery at payment of the balance
If the payment of the balance takes the form of a recovery (see Article 17 SGA), the EIT will
formally notify a 'pre‐information letter' to the KIC LE:
‐
informing it of its intention to recover, the amount due as the balance and the reasons
why;
‐
specifying that it intends to deduct the amount to be recovered from the amount
retained for the Guarantee Fund;
‐
requesting the KIC LE to submit a report on the distribution of payments to the KIC
Partners within 30 days of receiving notification, and
‐
inviting the KIC LE to submit observations within 30 days of receiving notification.
If no observations are submitted or the EIT decides to pursue recovery despite the
observations it has received, it will confirm recovery (together with the notification of amounts
due; see Article 17 SGA) and:
‐
pay the difference between the amount to be recovered and the amount retained for
the Guarantee Fund, if the difference is positive or
‐
formally notify to the KIC LE a debit note for the difference between the amount to
be recovered and the amount retained for the Guarantee Fund, if the difference is
negative. This note will also specify the terms and the date for payment.
If the KIC LE does not repay the EIT by the date in the debit note and has not submitted the
report on the distribution of payments: the EIT will recover the amount set out in the debit
note from the KIC LE (see below).
If the KIC LE does not repay the EIT by the date in the debit note, but has submitted the report
on the distribution of payments: the EIT will
a)
identify the KIC Partners for which the amount calculated as follows is negative:
{{{{KIC Partner’s costs declared in the final summary financial statement and approved
by the EIT multiplied by the reimbursement rate set out in Article 4 SGA for the KIC
Partner concerned
plus
13 Directive 2007/64/EC of the European Parliament and of the Council of 13 November 2007 on payment
services in the internal market amending Directives 97/7/EC, 2002/65/EC, 2005/60/EC and 2006/48/EC and
repealing Directive 97/5/EC (OJ L 319, 05.12.2007, p. 1).
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its linked third parties’ costs declared in the final summary financial statement and
approved by the EIT multiplied by the reimbursement rate set out in Article 4 SGA for
each linked third party concerned}
divided by
the EU contribution for the specific action calculated according to Article 10.3.1}
multiplied by
the final grant amount (see Article 10.3)},
minus
{pre‐financing payment received by the KIC Partner}}.
b) formally notify to each KIC Partner identified according to point (a) a debit note
specifying the terms and date for payment. The amount of the debit note is calculated
as follows:
{{amount calculated according to point (a) for the KIC Partner concerned
divided by
the sum of the amounts calculated according to point (a) for all the KIC Partners
identified according to point (a)}
multiplied by
the amount set out in the debit note formally notified to the KIC LE}.
If payment is not made by the date specified in the debit note, the EIT will recover the amount:
(a) by offsetting it — without the KIC Partner's consent — against any amounts owed to
the KIC Partner concerned by the EIT.
In exceptional circumstances, to safeguard the EU's financial interests, the EIT may
offset before the payment date specified in the debit note;
(b)
by drawing on the Guarantee Fund. The EIT will formally notify the KIC Partner
concerned the debit note on behalf of the Guarantee Fund and recover the amount:
(i)
if a linked third party has accepted joint and several liability (see Article 19), by
holding the third party liable up to the maximum EIT contribution indicated, for
the linked third party, in the estimated budget (see Annex 2 SGA);
(ii)
by taking legal action (see Article 63).
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OPTION 2: Not applicable.
If payment is not made by the date in the debit note, the amount to be recovered (see above)
will be increased by late‐payment interest at the rate set out in Article 17 SGA, from the day
following the payment date in the debit note, up to and including the date the EIT receives full
payment of the amount.
Partial payments will be first credited against expenses, charges and late‐payment interest and
then against the principal.
Bank charges incurred in the recovery process will be borne by the KIC Partner, unless Directive
2007/64/EC applies.
50.1.3 Recovery of amounts after payment of the balance
If for a KIC Partner, the revised final grant amount (see Article 10.4) is lower than its share of
the final grant amount, it must repay the difference to the EIT.
The KIC Partner’s share of the final grant amount is calculated as follows:
{{{KIC Partner’s costs declared in the final summary financial statement and approved by
the EIT multiplied by the reimbursement rate set out in Article 4 SGA for the KIC Partner
concerned
plus
its linked third parties’ costs declared in the final summary financial statement and
approved by the EIT multiplied by the reimbursement rate set out in Article 4 SGA for each
linked third party concerned}
divided by
the EIT contribution for the action calculated according to Article 10.3.1}
multiplied by
the final grant amount (see Article 10.3)}.
If the KIC LE has not distributed amounts received (see Article 17 SGA), the EIT will also recover
these amounts.
The EIT will formally notify a pre‐information letter to the KIC Partner concerned:
‐
informing it of its intention to recover, the due amount and the reasons why and
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‐
inviting it to submit observations within 30 days of receiving notification.
If no observations are submitted or the EIT decides to pursue recovery despite the
observations it has received, it will confirm the amount to be recovered and formally notify to
the KIC Partner concerned a debit note. This note will also specify the terms and the date for
payment.
If payment is not made by the date specified in the debit note, the EIT will recover the amount:
(a) by offsetting — without the KIC Partner’s consent — it against any amounts owed to
the KIC Partner concerned by the EIT.
In exceptional circumstances, to safeguard the EU’s financial interests, the EIT may
offset before the payment date specified in the debit note;
(b) by drawing on the Guarantee Fund. The EIT will formally notify the KIC Partner
concerned the debit note on behalf of the Guarantee Fund and recover the amount:
(i)
if a linked third party has accepted joint and several liability (see Article 19), by
holding the third party liable up to the maximum EIT contribution indicated, for
the linked third party, in the estimated budget (see Annex 2 SGA);
(ii)
by taking legal action (see Article 63).
If payment is not made by the date in the debit note, the amount to be recovered (see above)
will be increased by late‐payment interest at the rate set out in Article 17 SGA, from the day
following the date for payment in the debit note, up to and including the date the EIT receives
full payment of the amount.
Partial payments will be first credited against expenses, charges and late‐payment interest and
then against the principal.
Bank charges incurred in the recovery process will be borne by the KIC Partner, unless Directive
2007/64/EC applies.
ARTICLE 51 — ADMINISTRATIVE SANCTIONS
In addition to contractual measures, the EIT may also adopt administrative sanctions under
Articles 106 and 131(4) of the Financial Regulation No 966/2012 (i.e. exclusion from future
procurement contracts, grants and expert contracts and/or financial penalties).
SUBSECTION 2 LIABILITY FOR DAMAGES
ARTICLE 52 — LIABILITY FOR DAMAGES
52.1
Liability of the EIT
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The EIT cannot be held liable for any damage caused to the KIC Partners or to third parties as
a consequence of implementing the Framework Partnership Agreement or a Specific
Agreement, including for gross negligence.
The EIT cannot be held liable for any damage caused by any of the KIC Partners or third parties
involved in the specific action, as a consequence of implementing the Framework Partnership
Agreement or a Specific Agreement.
52.2
Liability of the KIC Partners
Except in case of force majeure (see Article 57), the KIC Partners must compensate the EIT for
any damage the EIT sustains as a result of the implementation of a specific action or because
a specific action was not implemented in full compliance with the Framework Partnership
Agreement or a Specific Agreement.
SUBSECTION 3 SUSPENSION AND TERMINATION
ARTICLE 53 — SUSPENSION OF PAYMENT DEADLINE
53.1
Conditions
The EIT may — at any moment — suspend the payment deadline in a specific grant (see Article
17 SGA) if a request for payment (see Article 16 SGA) cannot be approved because:
(a) it does not comply with the provisions of the Specific Agreement (see Article 16 SGA);
(b) the final report has not been submitted or is not complete or additional information
is needed, or
(c) there is doubt about the eligibility of the costs declared in the financial statements
and additional checks, reviews, audits or investigations are necessary.
53.2
Procedure
The EIT will formally notify the KIC LE of the suspension and the reasons why.
The suspension will take effect the day notification is sent by the EIT (see Article 58).
If the conditions for suspending the payment deadline are no longer met, the suspension will
be lifted — and the remaining period will resume.
If the suspension exceeds two months, the KIC LE may request the EIT if the suspension will
continue.
If the payment deadline has been suspended due to the non‐compliance of the final report
(see Article 16 SGA) and the revised report or statement is not submitted or was submitted but
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is also rejected, the EIT may also terminate the Specific Agreement concerned or the
participation of the KIC Partner (see Article 56.3.1(j)).
ARTICLE 54 — SUSPENSION OF PAYMENTS
54.1
Conditions
The EIT may — at any moment — suspend payments for a specific grant, in whole or in part
and for one or more KIC Partners, if:
a) a KIC Partner (or a natural person who has the power to represent or take decisions
on its behalf) has committed or is suspected of having committed
(i) substantial errors, irregularities or fraud or
(ii) serious breach of obligations under the Framework Agreement or a Specific
Agreement or during the award procedure (including improper implementation
of the specific action, submission of false information, failure to provide
required information, breach of ethical principles) or
b) a KIC Partner (or a natural person who has the power to represent or take decisions
on its behalf) has committed — in other EIT, EU or Euratom grants awarded to it under
similar conditions — systemic or recurrent errors, irregularities, fraud or serious
breach of obligations that have a material impact on the specific grant (extension of
findings from other grants to the specific grant; see Article 28.5.2).
If payments are suspended for one or more KIC Partners, the EIT will make partial payment(s)
for the part(s) not suspended. If suspension concerns the payment of the balance, — once
suspension is lifted — the payment or the recovery of the amount(s) concerned will be
considered the payment of the balance that closes the action.
54.2
Procedure
Before suspending payments, the EIT will formally notify the KIC LE or the KIC Partner
concerned:
‐
informing it of its intention to suspend payments and the reasons why and
‐
inviting it to submit observations within 30 days of receiving notification.
If the EIT does not receive observations or decides to pursue the procedure despite the
observations it has received, it will formally notify confirmation of the suspension. Otherwise,
it will formally notify that the suspension procedure is not continued.
The suspension will take effect the day the confirmation notification is sent by the EIT.
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If the conditions for resuming payments are met, the suspension will be lifted. The EIT will
formally notify the KIC LE or the KIC Partner concerned.
The KIC Partners may suspend implementation of the specific action (see Article 55.1) or
terminate the Specific Agreement concerned or the participation of the KIC Partner concerned
(see Articles 56.1 and 56.2).
ARTICLE 55 — SUSPENSION OF THE IMPLEMENTATION OF THE SPECIFIC ACTION
55.1
Suspension of the implementation of the specific action, by the KIC Partners
55.1.1 Conditions
The KIC Partners may suspend implementation of a specific action or any part of it, if
exceptional circumstances — in particular
force majeure (see Article 57) — make
implementation impossible or excessively difficult.
55.1.2 Procedure
The KIC LE must immediately formally notify to the EIT the suspension (see Article 58), stating:
‐
the reasons why and
‐
the expected date of resumption.
The suspension will take effect the day this notification is received by the EIT.
Once circumstances allow for implementation to resume, the KIC LE must immediately formally
notify the EIT and request an amendment of the Specific Agreement concerned to set the date
on which the specific action will be resumed, extend the duration of the specific action and
make other changes necessary to adapt the specific action to the new situation (see Article 61)
— unless the Specific Agreement or the participation of a KIC Partner has been terminated (see
Article 56).
The suspension will be lifted with effect from the resumption date set out in the amendment.
This date may be before the date on which the amendment enters into force.
Costs incurred during suspension of the implementation of the specific action are not eligible
(see Article 5 SGA).
55.2
Suspension of the implementation of the specific action, by the EIT
55.2.1 Conditions
The EIT may suspend implementation of a specific action or any part of it, if:
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(a) a KIC Partner (or a natural person who has the power to represent or take decisions
on its behalf) has committed or is suspected of having committed:
(i) substantial errors, irregularities or fraud or
(j) serious breach of obligations under the Framework Partnership Agreement or a
Specific Agreement or during the award procedure (including improper
implementation of the specific action, submission of false declaration, failure to
provide required information, breach of ethical principles);
(b) a KIC Partner (or a natural person who has the power to represent or take decisions
on its behalf) has committed — in other EIT, EU or Euratom grants awarded to it under
similar conditions — systemic or recurrent errors, irregularities, fraud or serious
breach of obligations that have a material impact on the specific grant (extension of
findings from other grants to the specific grant; see Article 28.5.2).
(c) not applicable.
55.2.2 Procedure
Before suspending implementation of the specific action, the EIT will formally notify the KIC LE
or the KIC Partner concerned:
‐
informing it of its intention to suspend the implementation and the reasons why and
‐
inviting it to submit observations within 30 days of receiving notification.
If the EIT does not receive observations or decides to pursue the procedure despite the
observations it has received, it will formally notify confirmation of the suspension. Otherwise,
it will formally notify that the procedure is not continued.
The suspension will take effect five days after the confirmation notification is received (or on a
later date specified in the notification).
It will be lifted if the conditions for resuming implementation of the specific action are met.
The KIC LE or the KIC Partner concerned will be formally notified of the lifting and the Specific
Agreement concerned will be amended to set the date on which the specific action will be
resumed, extend the duration of the specific action and make other changes necessary to
adapt the specific action to the new situation (see Article 61) — unless the Agreement has
already been terminated (see Article 56).
The suspension will be lifted with effect from the resumption date set out in the amendment.
This date may be before the date on which the amendment enters into force.
Costs incurred during suspension are not eligible (see Article 5 SGA).
The KIC Partners may not claim damages due to suspension by the EIT (see Article 52).
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Suspension of the implementation of the specific action does not affect the EIT’s right to
terminate the Agreement or participation of a KIC Partner (see Article 56), reduce the grant or
recover amounts unduly paid (see Articles 49 and 50).
ARTICLE 56 — TERMINATION OF THE SPECIFIC AGREEMENTS OR OF THE PARTICIPATION OF ONE
OR MORE KIC PARTNERS
56.1
Termination of the Specific Agreements, by the KIC Partners
56.1.1 Conditions and procedure
The KIC Partners may terminate a Specific Agreement.
The KIC LE must formally notify termination to the EIT (see Article 58), stating:
‐
the reasons why and
‐
the date the termination will take effect. This date must be after the notification.
If no reasons are given or if the EIT considers the reasons do not justify termination, the Specific
Agreement concerned will be considered to have been ‘terminated improperly’.
The termination will take effect on the day specified in the notification.
56.1.2 Effects
The KIC LE must — within 60 days from when termination takes effect — submit a final report
(see Article 16 SGA).
If the EIT does not receive the report within the deadline (see above), no costs are considered
as eligible.
The EIT will calculate the final grant amount (see Article 10.3) and the balance (see Article 17
SGA) on the basis of the report submitted. Only costs incurred until termination are eligible.
Costs relating to contracts due for execution only after termination are not eligible.
Improper termination may lead to a reduction of the grant (see Article 49).
After termination, the KIC Partners' obligations (in particular Articles 26, 28, 29, Subsection 3
of Section 3 of Chapter 3, 42, 43, 44, 46, 48, 49 and 50) continue to apply.
56.2
Termination of the participation of one or more KIC Partners, by the KIC Partners
56.2.1 Conditions and procedure
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The participation of one or more KIC Partners in a specific action may be terminated by the KIC
LE, on request of the KIC Partner concerned or on behalf of the other KIC Partners; such a
request shall be made in compliance with the KIC’s governance rules.
The KIC LE must formally notify termination to the EIT (see Article 58) and inform the KIC
Partner concerned.
If the KIC LE's participation is terminated, the formal notification must be done by another KIC
Partner (acting on behalf of all the other KIC Partners).
The notification must include:
‐
the reasons why;
‐
the opinion of the KIC Partner concerned (or proof that this opinion has been
requested in writing);
‐
the date the termination takes effect. This date must be after the notification;
‐
a request for amendment (see Article 61), with a proposal for reallocation of the tasks
and the estimated budget of the KIC Partner concerned (see Annexes 1 and 2 SGA)
and, if necessary, the addition of one or more new KIC Partners (see Article 62). If
termination takes effect after the period set out in Article 3 SGA, no request for
amendment must be included unless the KIC Partner concerned is the KIC LE. In this
case, the request for amendment must propose a new KIC LE.
If this information is not given or if the EIT considers that the reasons do not justify termination,
the participation will be considered to have been terminated improperly.
The termination will take effect on the day specified in the notification.
56.2.2 Effects
The KIC LE must — within 30 days from when termination takes effect — submit:
(i) a report on the distribution of payments to the KIC Partner concerned and
(ii) if termination takes effect during the period set out in Article 3 of the SGA, a
‘termination report’ from the KIC Partner concerned, containing an overview of the
progress of the work until termination, an overview of the use of resources, the
individual financial statement and, if applicable, the certificate on the financial
statement (see Article 16 SGA).
The information in the termination report must also be included in the final report (see Article
16 SGA).
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If the request for amendment is rejected by the EIT (because it calls into question the decision
awarding the specific grant or breaches the principle of equal treatment of applicants or the
KICs), the Specific Agreement concerned may be terminated according to Article 56.3.1(c).
If the request for amendment is accepted by the EIT, the Specific Agreement concerned is
amended to introduce the necessary changes (see Article 61).
The EIT will — on the basis of the termination report and the report on the distribution of
payments — calculate the amount which is due to the KIC Partner if the pre‐financing payment
received by the KIC Partner concerned exceed this amount.
The amount which is due is calculated in the following steps:
Step 1‐ Application of the reimbursement rate to the eligible costs
The grant amount for the KIC Partner is calculated by applying the
reimbursement rate(s) to the total eligible costs declared by the KIC Partner and
its linked third parties in the termination report and approved by the EIT.
Only costs incurred by the KIC Partner concerned until termination takes effect
are eligible (see Article 5 SGA). Costs relating to contracts due for execution only
after termination are not eligible.
Step 2 – Reduction due to substantial errors, irregularities or fraud or serious breach of
obligations
In case if a reduction (see Article 49), the EIT will calculate the reduced grant
amount for the KIC Partner by deducting the amount of the reduction
(calculated in proportion to the seriousness of the errors, irregularities or fraud
or breach of obligations, in accordance with Article 49.2) from the grant amount
for the KIC Partner.
•
If the payments received exceed the amounts due:
‐
if termination takes effect during the period set out in Article 3 SGA and the
request for amendment is accepted, the KIC Partner concerned must repay to the
KIC LE the amount unduly received. The EIT will formally notify the amount unduly
received and request the KIC Partner concerned to repay it to the KIC LE within
30 days of receiving notification. If it does not repay the KIC LE, the EIT will draw
upon the Guarantee Fund to pay the KIC LE and then notify a debit note on behalf
of the Guarantee Fund to the KIC Partner concerned (see Article 50);
‐
in all other cases (in particular if termination takes effect after the period set out
in Article 3 SGA), the EIT will formally notify a debit note to the KIC Partner
concerned. If payment is not made by the date in the debit note, the Guarantee
Fund will pay to the EIT the amount due and the EIT will notify a debit note on
behalf of the Guarantee Fund to the KIC Partner concerned (see Article 50);
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‐
if the KIC Partner concerned is the former KIC LE, it must repay the new KIC LE
the amount unduly received;
In this case, the EIT will formally notify a debit note to the former KIC LE. If
payment is not made by the date in the debit note, the Guarantee Fund will pay
to EIT the amount due. The EIT will then pay the new KIC LE and notify a debit
note on behalf of the Guarantee Fund to the former KIC LE (see Article 50).
•
If the payments received do not exceed the amounts due: amounts owed to the KIC
Partner concerned will be included in the payment of the balance.
If the EIT does not receive the termination report within the deadline (see above), the EIT will
not consider any cost as eligible.
If the EIT does not receive the report on the distribution of payments within the deadline (see
above), it will consider that:
‐
the KIC LE did not distribute any payment to the KIC Partner concerned, and that
‐
the KIC Partner concerned must not repay any amount to the KIC LE.
Improper termination may lead to a reduction of the specific grant (see Article 49) or
termination of the Specific Agreement concerned (see Article 56).
After termination, the concerned KIC Partner’s obligations (in particular Articles 26, 28, 29,
Subsection 3 of Section 3 of Chapter 3, 42, 43, 44, 46, 48, 49 and 50) continue to apply.
56.3
Termination of the Specific Agreements or participation for one or more KIC Partners, by
the EIT
56.3.1 Conditions
The EIT may terminate a Specific Agreement or the participation of one or more KIC Partners
in a specific action, if:
(a) one or more KIC Partners do not accede to the Framework Partnership Agreement
(b) a change to their legal, financial, technical, organisational or ownership situation (or
those of its linked third parties) is likely to substantially affect or delay the
implementation of the specific action or calls into question the decision to award the
specific grant;
(c) following termination of participation for one or more KIC Partners (see above), the
necessary changes to the Specific Agreement would call into question the decision
awarding the specific grant or breach the principle of equal treatment of applicants
or the KICs (see Article 61);
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(d) implementation of the specific action is prevented by force majeure (see Article 57)
or suspended by the KIC LE (see Article 55.1) and either:
(i) resumption is impossible, or
(ii) the necessary changes to the Specific Agreement would call into question the
decision awarding the specific grant or breach the principle of equal treatment of
applicants or the KICs;
(e) a KIC Partner is declared bankrupt, being wound up, having its affairs administered by
the courts, has entered into an arrangement with creditors, has suspended business
activities, or is subject to any other similar proceedings or procedures under national
law;
(f) a KIC Partner (or a natural person who has the power to represent or take decisions
on its behalf) has been found guilty of professional misconduct, proven by any means;
(g) a KIC Partner does not comply with the applicable national law on taxes and social
security;
(h) not applicable;
(i) for specific actions that are joint actions under a Specific Agreement: additional
grounds for termination are set out in the Specific Agreement (see Article 20 SGA);
(j) a KIC Partner (or a natural person who has the power to represent or take decisions
on its behalf) has committed fraud, corruption, or is involved in a criminal
organisation, money laundering or any other illegal activity;
(k) a KIC Partner (or a natural person who has the power to represent or take decisions
on its behalf) has committed:
(i) substantial errors, irregularities, fraud or
(ii) serious breach of obligations under the Framework Partnership Agreement or a
Specific Agreement or during the award procedure (including improper
implementation of the specific action, submission of false information, failure to
provide required information, breach of ethical principles);
(l) a KIC Partner (or a natural person who has the power to represent or take decisions
on its behalf) has committed — in other EIT, EU or Euratom grants awarded to it under
similar conditions — systemic or recurrent errors, irregularities, fraud or serious
breach of obligations that have a material impact on the specific grant (‘extension of
findings from other grants to the specific grant’; see Article 28.5.2);
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(m) despite a specific request by the EIT, the KIC Partner does not request – through the
coordinator – an amendment to the Agreement to end the participation of one of its
linked third parties or international partners that is in one of the situations under (e),
(f), (g), (k), (l) or (m) and to reallocate its tasks.
56.3.2 Procedure
Before terminating the Specific Agreement or participation of one or more KIC Partners, the
EIT will formally notify the KIC LE or the KIC Partner concerned:
‐
informing it of its intention to terminate and the reasons why and
‐
inviting it, within 30 days of receiving notification, to submit observations and — in
case of Point (k.ii) above — to inform the EIT of the measures to ensure compliance
with the obligations under the Framework Partnership Agreement and the Specific
Agreement concerned.
If the EIT does not receive observations or decides to pursue the procedure despite the
observations it has received, it will formally notify to the KIC LE or the KIC Partner concerned
confirmation of the termination and the date it will take effect. Otherwise, it will formally notify
that the procedure is not continued.
The termination will take effect:
‐
for terminations under Points (b), (c), (e), (g), (h), (k.ii) and (m) above: on the day
specified in the notification of the confirmation (see above);
‐
for terminations under Points (a), (d), (f), (i), (k.i) and (l) above: on the day after the
notification of the confirmation is received by the KIC LE.
56.3.3 Effects
(a)
for termination of the Agreement:
The KIC LE must — within 60 days from when termination takes effect — submit the final report
(see Article 16 SGA).
If the Specific Agreement is terminated for breach of the obligation to submit the final report
(see Article 56.3.1(k) and Article 16 SGA) the KIC LE may not submit any reports after
termination.
If the EIT does not receive the report within the deadline (see above), the EIT will not consider
any cost as eligible for the specific action.
The EIT will calculate the final grant amount (see Article 10.3) and the balance (see Article 17
SGA) on the basis of the report submitted. Only costs incurred until termination takes effect
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are eligible (see Article 5 SGA). Costs relating to contracts due for execution only after
termination are not eligible.
This does not affect the EIT’s right to reduce the specific grant (see Article 49) or to impose
administrative sanctions (Article 51).
The KIC Partners may not claim damages due to termination by the EIT (see Article 52).
After termination, the KIC Partners’ obligations (in particular Articles 26, 28, 29, Subsection 3
of Section 3 of Chapter 3, 42, 43, 44, 46, 48, 49 and 50) continue to apply.
(b)
for termination of the participation of one or more KIC Partners:
The KIC LE must — within 60 days from when termination takes effect — submit:
(i) a report on the distribution of payments to the KIC Partner concerned;
(ii) a request for amendment (see Article 61), with a proposal for reallocation of the tasks
and the estimated budget of the KIC Partner concerned (see Annexes 1 and 2 SGA)
and, if necessary, the addition of one or more new KIC Partners (see Article 62). If
termination takes effect after the period set out in Article 3 SGA, no request for
amendment must be included unless the KIC Partner concerned is the KIC LE. In this
case, the request for amendment must propose a new KIC LE, and
(iii) if termination takes effect during the period set out in Article 3 SGA, a termination
report from the KIC Partner concerned, containing an overview of the progress of the
work until termination, an overview of the use of resources, the individual financial
statement and, if applicable, the certificate on the financial statement (see Article 16
SGA);
The information in the termination report must also be included in the final report (see Article
16 SGA).
If the request for amendment is rejected by the EIT (because it calls into question the decision
awarding the grant or breaches the principle of equal treatment of applicants or the KICs), the
Specific Agreement may be terminated according to Article 56.3.1(c).
If the request for amendment is accepted by the EIT, the Specific Agreement is amended to
introduce the necessary changes (see Article 61).
The EIT will — on the basis of the termination report and the report on the distribution of
payments — calculate the amount which is due to the KIC Partner and if the pre‐financing
payment received by the KIC Partner concerned exceed this amount.
The amount which is due is calculated in the following steps:
Step 1 – Application of the reimbursement rate to the eligible costs
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The grant amount for the KIC Partner is calculated by applying the
reimbursement rate(s) to the total eligible costs declared by the KIC Partner and
its linked third parties in the termination report and approved by the EIT.
Only costs incurred by the KIC Partner concerned until termination takes effect
are eligible (see Article 5 SGA). Costs relating to contracts due for execution only
after termination are not eligible.
Step 2 – Reduction due to substantial errors, irregularities or fraud or serious
breach of obligations
In case if a reduction (see Article 43), the EIT will calculate the reduced grant
amount for the KIC Partner by deducting the amount of the reduction
(calculated in proportion to the seriousness of the errors, irregularities or fraud
or breach of obligations, in accordance with Article 43.2) from the grant amount
for the KIC Partner.
•
If the payments received exceed the amounts due:
‐
if termination takes effect during the period set out in Article 3 SGA and the
request for amendment is accepted, the KIC Partner concerned must repay to the
KIC LE the amount unduly received. The EIT will formally notify the amount unduly
received and request the KIC Partner concerned to repay it to the KIC LE within
30 days of receiving notification. If it does not repay the KIC LE, the EIT will draw
upon the Guarantee Fund to pay the KIC LE and then notify a debit note on behalf
of the Guarantee Fund to the KIC Partner concerned (see Article 50);
‐
in all other cases, in particular if termination takes effect after the period set out
in Article 3 SGA, the EIT will formally notify a debit note to the KIC Partner
concerned. If payment is not made by the date in the debit note, the Guarantee
Fund will pay to the EIT the amount due and the EIT will notify a debit note on
behalf of the Guarantee Fund to the KIC Partner concerned (see Article 50) ;
‐
if the KIC Partner concerned is the former KIC LE, it must repay the new KIC LE
the amount unduly received.
In this case, the EIT will formally notify a debit note to the former KIC LE. If
payment is not made by the date in the debit note, the Guarantee Fund will pay
to the EIT the amount due. The EIT will then pay the new KIC LE and notify a debit
note on behalf of the Guarantee Fund to the former KIC LE (see Article 50).
•
If the payments received do not exceed the amounts due: amounts owed to the KIC
Partner concerned will be included in the payment of the balance.
If the EIT does not receive the termination report within the deadline (see above), the EIT will
not consider any cost as eligible.
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If the EIT does not receive the report on the distribution of payments within the deadline (see
above), it will consider that:
‐
the KIC LE did not distribute any payment to the KIC Partner concerned, and that
‐
the KIC Partner concerned must not repay any amount to the KIC LE.
After termination, the concerned KIC Partner’s obligations (in particular Articles 26, 28, 29,
Subsection 3 of Section 3 of Chapter 3, 42, 43, 44, 46, 48, 49, 50) continue to apply.
SUBSECTION 4 FORCE MAJEURE
ARTICLE 57 — FORCE MAJEURE
‘Force majeure’ means any situation or event that:
‐
prevents either party from fulfilling their obligations under the Agreement,
‐
was unforeseeable, exceptional situation and beyond the parties’ control,
‐
was not due to error or negligence on their part (or on the part of third parties
involved in the action), and
‐
proves to be inevitable in spite of exercising all due diligence.
The following cannot be invoked as force majeure:
‐
any default of a service, defect in equipment or material or delays in making them
available, unless they stem directly from a relevant case of force majeure,
‐
labour disputes or strikes, or
‐
financial difficulties.
Any situation constituting force majeure must be formally notified to the other party without
delay, stating the nature, likely duration and foreseeable effects.
The parties must immediately take all the necessary steps to limit any damage due to force
majeure and do their best to resume implementation of the action as soon as possible.
The party prevented by force majeure from fulfilling its obligations under the Framework
Partnership Agreement or a Specific Agreement cannot be considered in breach of them.
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CHAPTER 4
FINAL PROVISIONS
ARTICLE 58 — COMMUNICATIONS BETWEEN THE PARTIES SIGNING THE FRAMEWORK
PARTNERSHIP AGREEMENT
58.1
Form and means of communications
Communication under the Framework Partnership Agreement and the Specific Agreements
(information, requests, submissions, formal notifications, etc.) must:
‐
be made in writing and
‐
bear the number of the Framework Partnership Agreement and the Specific
Agreement concerned;
‐
be submitted to the addresses listed in Article 58.3.
Communication may be made either:
‐
through the EIT dedicated electronic exchange platform and using the forms and
templates provided there;
‐
electronically in the form of e‐mail; or
‐
by registered post with proof of delivery (‘formal notification on paper’).
If the electronic exchange system is temporarily unavailable, instructions will be provided by
the EIT.
Formal notifications must be made by registered post with proof of delivery, unless otherwise
agreed between the parties.
Electronic communications must be confirmed by an original signed paper version of that
communication, if requested by any of the parties signing the Framework Partnership
Agreement, provided that this request is submitted without unjustified delay. The sender shall
send the original signed paper version without unjustified delay.
Communications from the other KIC Partners shall be channelled via the KIC LE.
58.2
Date of communications
Communications are considered to have been made when they are received by the receiving
party, unless the Framework Partnership Agreement or the Specific Agreement refers to the
date when the communication was sent.
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Electronic communications are considered to have been made on the day of successful dispatch
of the communication, provided that it is sent to the addressees listed in Article 58.3. Dispatch
is considered unsuccessful if the sending party receives a message of non‐delivery. In this case,
the sending party must immediately send again such communication to any of the other
addresses listed in Article 58.3. In case of unsuccessful dispatch, the sending party will not be
held in breach of its obligation to send such communication within a specified deadline.
Formal notifications on paper sent by registered post with proof of delivery are considered to
have been made on either:
‐
the delivery date registered by the postal service or
‐
the deadline for collection at the post office.
Formal notifications through the EIT dedicated electronic exchange platform are considered to
have been made when they are received by the receiving party (i.e. on the date and time of
acceptance by the receiving party). A formal notification that has not been accepted within 30
days after sending is considered to have been accepted.
58.3
Addresses for communication
Communications addressed to the EIT must be sent to the following address:
Director
European Institute of Innovation and Technology ‐ EIT
Infopark, Building E, 1 Neumann Janos Street
1117 Budapest
Hungary
E‐mail address:
EIT‐xxxxxxxx@xxx.xxxxxx.xx
Communications from the EIT to the KIC Partners must be sent to the KIC LE’s legal address or
e‐mail address as specified in the preamble.
The electronic exchange platform can be accessed via the following URL:
https://duna.eit.europa.eu
The EIT will formally notify the KIC LE in advance of any changes to this platform.
ARTICLE 59 — INTERPRETATION OF THE FRAMEWORK PARTNERSHIP AGREEMENT AND THE
SPECIFIC AGREEMENTS
59.1
Precedence of the Terms and Conditions over the Annexes
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The provisions in the Terms and Conditions of the Framework Partnership Agreement and the
Specific Agreements take precedence over their Annexes.
Annex 2 to the Specific Agreements takes precedence over their Annex 1.
59.2
Precedence of the Terms and Conditions of the Specific Agreements over the Framework
Partnership Agreement
The provisions in the ‘Terms and Conditions’ of the Specific Agreements take precedence over
the Framework Partnership Agreement.
ARTICLE 60 — CALCULATION OF PERIODS, DATES AND DEADLINES
In accordance with Regulation No 1182/7114, periods expressed in days, months or years are
calculated from the moment the triggering event occurs.
The day during which that event occurs is not considered as falling within the period.
ARTICLE 61 — AMENDMENTS TO THE FRAMEWORK PARTNERSHIP AGREEMENT AND THE
SPECIFIC AGREEMENTS
61.1
Conditions
The Framework Partnership Agreement and the Specific Agreements may be amended, unless
the amendment entails changes to those Agreements which would call into question the
decisions awarding the framework partnership or specific grants concerned or breach the
principle of equal treatment of the applicants or KICs.
Amendments may be requested by any of the parties signing the Framework Partnership
Agreement.
61.2
Procedure
The party requesting an amendment must submit a request for amendment (see Article 58).
The KIC LE submits and receives requests for amendment on behalf of the KIC Partners (see
Annex 4).
If a change of the KIC LE is requested, the submission must be done by another KIC Partner
(acting on behalf of the other KIC Partners).
The request for amendment must include:
‐
the reasons why;
14 Regulation (EEC, Euratom) No 1182/71 of the Council of 3 June 1971 determining the rules applicable to
periods, dates and time‐limits (OJ L 124, 8.6.1971, p. 1).
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‐
the appropriate supporting documents, and
‐
for a change of the KIC LE: the opinion of the KIC LE (or proof that this opinion has
been requested in writing).
The EIT may request additional information.
If the party receiving the request agrees, it must sign the amendment within 45 days of
receiving notification (or any additional information the EIT has requested). If it does not agree,
it must formally notify its disagreement within the same deadline. The deadline may be
extended, if necessary for the assessment of the request. If no notification is received within
the deadline, the request is considered to have been rejected.
An amendment enters into force on the day of the signature of the receiving party.
An amendment takes effect on the date agreed by the parties or, in the absence of such an
agreement, on the date on which the amendment enters into force.
ARTICLE 62 — ACCESSION TO THE FRAMEWORK PARTNERSHIP AGREEMENT AND THE SPECIFIC
AGREEMENTS
62.1
Accession of the KIC Partners mentioned in Annex 2
The other KIC Partners must accede to the Framework Partnership Agreement by signing the
Accession Form (see Annex 4), within 120 days after its entry into force (see Article 64) and for
KIC Partners for which the EIT has requested joint and several liability of a linked third party,
by also submitting — at accession to the Framework Partnership Agreement — a declaration
on joint and several liability (see Annex 4a) signed by the third party.
All KIC Partners having acceded to the Framework Partnership Agreement must be part of the
Specific Agreements. The KIC Partners will accede to the Specific Agreement by signature of
the KIC LE (mandate in Annex 4).
They will assume the rights and obligations under the Agreements with effect from the date of
their entry into force (see Article 64 and Article 21 SGA).
If a KIC Partner does not accede to the Framework Partnership Agreement within the above
deadline, the KIC LE must — within 30 days — request an amendment to make any changes
necessary to ensure proper implementation of the Strategic Agenda. This does not affect the
EIT’s right to terminate the agreements (see Articles 6 and 56).
62.2
Addition of new KIC Partners
In justified cases, the KIC Partners may request the addition of a new KIC Partner.
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For this purpose, the KIC LE must submit a request for amendment of the Framework
Partnership Agreement and the ongoing Specific Agreement in accordance with Article 61. The
request must include an Accession Form (see Annex 4) signed by the new KIC Partner.
New KIC Partners must assume the rights and obligations under the Agreements with effect
from the date of their accession specified in the Accession Form (see Annex 4).
ARTICLE 63 — APPLICABLE LAW AND SETTLEMENT OF DISPUTES
63.1
Applicable law
The Framework Partnership Agreement and the Specific Agreements are governed by the
applicable EU law, supplemented if necessary by the law of Belgium.
63.2
Dispute settlement
If a dispute concerning the interpretation, application or validity of the Framework Partnership
Agreement or a Specific Agreement cannot be settled amicably, the General Court — or, on
appeal, the Court of Justice of the European Union — has sole jurisdiction. Such actions must
be brought under Article 272 of the Treaty on the Functioning of the EU (TFEU).
As an exception, if such a dispute is between the EIT and non‐EU KIC Partner(s) (except KIC
Partners established in an associated country with an association agreement to Horizon 2020
that stipulates sole jurisdiction of the European Court of Justice), the competent Belgian courts
have sole jurisdiction.
For KIC Partners not eligible for EIT funding under a Specific Agreement which according to
their national law cannot be subject to the jurisdiction of the Belgian courts, such disputes
must — if they cannot be settled amicably — be referred to arbitration. Each party must
formally notify to the other party its intention of resorting to arbitration and the identity of the
arbitrator. The Permanent Court of Arbitration Optional Rules for Arbitration Involving
International Organisations and States in force at the date of entry into force of the Framework
Partnership Agreement will apply. The appointing authority will be the Secretary‐General of
the Permanent Court of Arbitration following a written request submitted by either party
signing the Framework Partnership Agreement. The arbitration proceedings must take place in
Brussels and the language used in the arbitral proceedings will be English. The arbitral award
will be binding on all parties and will not be subject to appeal.
If a dispute concerns administrative sanctions or offsetting (see Articles 50, 51 and 52), the KIC
Partners must bring action before the General Court — or, on appeal, the Court of Justice of
the European Union — under Article 263 TFEU.
ARTICLE 64 — ENTRY INTO FORCE OF THE FRAMEWORK PARTNERSHIP AGREEMENT
The Framework Partnership Agreement shall enter into force with retroactive effect on
01 January 2016.
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By the entry into force of the present Framework Partnership Agreement, the Framework
Partnership Agreement signed by the parties on 16/02/2011 shall be repealed.
The KIC Partners will ensure the transition from the currently applicable KIC IP Policy to comply
with the Articles 29a‐37 of the FPA in the course of 2016.
SIGNATURES
For the KIC LE
For the EIT
Diego PAVIA
Martin KERN
CEO
Interim Director
Done in English at ……………..………. on …………...……. Done in English at Budapest on ……………
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Annex 1
Strategic Agenda of the KIC
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Annex 2
List of Partners
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Annex 3
Model Specific Agreement and Annexes
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Annex 4
Accession Forms
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Annex 4a
Declaration on joint and several liability of linked third parties
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Annex 5
List of linked third parties
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Annex 6
Model for the Certificate on the Methodology
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Annex 7
List of International Partners
82